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UNITED STATES OF AMERICA.^?! :l 

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BY THE SAME AUTHOR, 



THE REPUBLIC OF GOD. 
^n institute cf S:6ecil002* 

By ELISHA MULFORD, LL. D. 
I vol. 8vOy $2.00. 



From the Lutheran Observer {^Philadelphia). 

Every page stimulates thought, and every argument proceeds from postulate to 
inevitable conclusion, like the tread of a conquering army. 

From The American {Philadelphia). 

It is distinguished by power of thought, felicity of style, and perfect candor. To 
employ the phrase of King James, there is as much conviction in one leaf of his 
book as in many another volume. 

From The Independent {New York). 

The author writes with a grand and convincing seriousness. Like the voice of 
truth, he brushes aside confusion and misconception in his illuminating presentation. 

From. The A dvance ( Chicago). 

It is a distinct contribution to the Christian thought of the time. No thoughtful 
person can read it without a rich gain to his own thinking. 

From. The Critic {New York). 

We do not remember that this country has lately produced a speculative work of 
more originality and force. 

From, the Boston Journal. 

It is one of the few books which may be described as formative ; its temper is calm 
and lofty, and its ennobling conceptions of God and duty take hold upon the heart 
as well as upon the intellect. 



*^* For sale by Booksellers. Sent, post-paid, on receipt of price by 
the Publishers, 

HOUGHTON, MIFFLIN & CO., Boston, Mass. 



THE NATION 



FOUNDATIONS OF CIVIL ORDER AND POLITICAL 
LIFE IN THE UNITED STATES. 



ELISHA MULFORD, LL. D. 




BOSTON; 
HOUGHTON, MIFFLIN AND COMPANY. 

New York: 11 East Seventeenth Street. 

1894. 



v\ 



^ 



^ 



r 



48283 

Entered according to Act of Congress, in the year 1870, by 

E. MULFOED, 

In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. 



RIVERSIDE, CAMBRIDGE : 

STEREOTTPED AND PRINTED BT 

H. 0. HOUGHTON AND COMPANY. 




To THE 

MEMORY OF 

MY FATHER, 

m THE HOPE THAT HIS FAITH SHALL LIVE IN HIS CHILDREN'S 
CHILDREN, 

/ DEDICATE THIS WORK. 



PEEFACE. 



The purpose of this book is to ascertain and de- 
fine the being of the nation in its unity and con- 
tinuity. There is moving toward its realization 
in national laws and institutions, the necessary 
being of the nation itself. The nation thus 
becomes an object of political knowledge. 

It is no abstraction, but in this alone is the 
avoidance of abstractions. It avoids, on the one 
hand, an empty empiricism, that with the recogni* 
tion of no consistent principle makes the nation 
only a formal organization, and politics only a suc- 
cession of random experiments, hits, and ventures ; 
and on the other hand, avoids an abstract idealism, 
which, regarding the state also as only a formal 
organization, would shape all things after an im- 
aginary polity and an abstract design. It is this 
conception of the state as involving unity and con- 
tinuity which is the condition of pohtical science, 
that is to be set forth alike against the political 
empiric and the political dogmatist. It is this 
alone which can avert the danger which there is 
in the application of formal and abstract concep- 
tions in politics. It is a logic which is presumed 
in politics, — if politics be an object of knowledge, 



VI PREFACE. 

— but a logic formed in the necessary conception 
and manifest in the realization of the nation, not 
the barren forms of logic as it is held in the no- 
tions of the schools. In this conception that cer- 
tainly is to be retained which works well, but polit- 
ical science is to apprehend the law and condition 
of its working. 

The apprehension is of the realization of the 
nation in the United States, its substance, its 
rights, and its powers, underlying but manifest in 
its whole form and organization. 

This book had its beginning in a purpose to rep- 
resent the nation in its moral being; to assert this 
moral being in its true position in politics; but 
the aim has been throughout as the conception 
widened, to define in their relative and positive 
character those principles which are the ground of 
political science. I do not believe that the teacher 
of ethics can avoid the subject of politics. I do 
not believe that there can be a separation of them 
in the thought of a people, but ethics will be- 
come abstract and formal, — the dry product of 
the schools ; and politics be bereft of all its power 
to become at last even a name of reproach. The 
book may thus serve to indicate, perhaps, in some 
measure the sources of the power of American in- 
stitutions in the formation of character. 

I have written in the conception that holds 
politics itself as a science which is the ground of 
political education. In its apprehension of the be- 



PREFACE. Vll 



ing of tlie nation, its unity and laws, which form 
the condition of science, political history, juris- 
prudence, political economy, and social statics, are 
separate and subordinate departments; political 
history is concerned with the rise and growth of 
institutions, and the comparative value of politieal 
constitutions ; jurisprudence is the science of the 
jural law and civil organization ; political economy 
is the science of wealth, of the relations of labor 
and capital, of the laws of production and ex- 
change ; social statics is the science of the laws of 
health and population ; international law may be 
regarded also as subordinate, since it presumes 
the existence of separate nations, and is formed 
mainly in the conception in which the nation is 
held. 

A larger space has been given in some instances 
to subjects of special interest in the immediate 
condition of affairs, as the jural and the economic 
representation of the nation, the relation of nat- 
ural and political rights, the distinction of civil 
and political rights, the representative principle, 
the method and dangers of a representative con- 
stitution, and the relation and difference of the 
civil and the international state, a particular State, 
and the United States. 

I have written with an obligation, which 1 am 
glad to acknowledge, to the Rev. Mr. Maurice of 
London, and to Hegel and Stahl, to Trendelen- 
burg and Bluntschli ; while 1 have sought by ref 



Vlii PREFACE. 

erence to them to indicate this, it has been larger 
than mere notes of reference can trace; and I am 
never sure but their words may have mingled un- 
awares with my thought ; I shall not regret this if 
it may lead any who may trace them to traverse 
those rich and ample fields, or if it may be an aid 
to larger knowledge. This only can be the aim 
of the worker; and it is much to contribute to 
the knowledge of the people in any form and in 
however slight a measure. The saddest of words 
are, — the people perish for lack of knowledge. 

The slight references to the Alabama question I 
may say were written before the recent discussion 
of the subject, but I have seen no reason to change 
them. 

The words ^^ nation'' and ^^ state" are used as 
sjmonymous, and a particular State in the United 
States is written "State'' and is described as a 
commonwealth, as the commonwealth of Massa- 
chusetts or Virginia. 

I have sought, however imperfectly, to give ex- 
pression to the thought of the people in the late 
war, and that conception of the nation, which they 
who were so worthy, held worth living and dying 
for. I know how far it falls short of that concep- 
tion which went with them to battle and sacrifice ; 
yet I would most care to connect, if I may, my 
work with theirs, and trust it may be received by 
Him, who is the head of all, to whom their service 
was done. 



CONTENTS. 



CHAPTER L 

Thb Substance op the ISjation ... • • .*. 1 

The nation 

1. Is founded in the nature of man. 

2. Is a relationship. 

3. Is a continuity. 

4. Is an organism. 

5. Is a conscious organism. 

6. Is A MORAL ORGANISM. 

7. Is a moral personality' 

Its definition in the history of political science. 

CHAPTER IL 
The Nation as Defined in Theories < • • • • S4 

The nation is represented as 

1. A necessary evil. 

2. An historical accident. 

3. A jural society. 

4. An economic society. 

CHAPTER m. 
The Origin op the Nation as Defined in Theories . S7 

It is said that its origin 

1. Is in the development of the family. 

2. Is in mere force or might. 

3. Is in some instinct or emotion of man. 

4. Is in the social contract : historical genesis of this theory. 

5. Is in popular sovereignty. 

CHAPTER IV. 
The Orioin of the Nation M 



1. The nation is of divine foundation : analogy with the famOy. 

2. The evidence of its origin : — 



CONTENTS. 

rAai 



a. In its moral being and personality, 
6. In its government. 

c. In its authority and powers. 

d. In the facts which indicate the consciousness of the people. 
«. In the facts which indicate the conscience of the people. 



CHAPTER V. 
The People and the Land 



The interrelation of the people and the land. 

1 . The unity of the people. 

3. The entirety of the people. 

3. The political people. 
The influence of the land on the people. 

The origin of the nation in local contiguity : theory ol Mr. Maine 
— of Mr. Buckle. 

CHAPTER VI. 

The Nation the Institution of Rights 78 

The law of rights. 

The distinction of natural and positive rights. 

a. Natural rights. 

b. Positive rights. 

The law of the relation of natural and positive rights. 

0. The theory which defines their isolation. 

b. The theory which defines their identity. 
The distinction of civil and political rights. 

1. Civil rights, a. Of life. 6. Of liberty, c. Of property; its repre- 

sentation in legal formulas of Savigny, of Blackstone ; its rep- 
resentation in political speculations of Locke, of Considerant, 
of Hegel. Criticism of Proudhon. c?. Of equality before the law. 

2. Political rights. The rights of the political people. The rights 

instituted in the nation as a moral organism. 
The correspondence of rights and duties. 
Rights as defined in legal and political forms. 

a. Original and acquired rights. 

6. Absolute and relative rights. 

c. Rights of persons and things. 
The realization of rights in the nation. 

CHAPTER Vn. 

The Nation the Realization of Ekeedom " , . , ,108 

Freedom, the realization of personality. 

The freedom of the people subsists in the nation, in its moral per- 
sonality. 
The law and condition of political freedom. 
The defect in the common definitions of political freedom. 
The nation the realization of freedom. 
The political order is to conform to the will of the political people. 



CONTENTS. XI 

PAOI 

It is the assertion of the self-determination of the people in the 

nation as a moral organism. 
The realization of Freedom in Rights. 

a. It is construed in Rights. 

b. It is formed in institutions. 

On the representation of political freedom in different theories. 
On the assumption of freedom as existent before the organization of 
society. 

CHAPTER Vm. 
Thb Sovereignty op the Nation 129 

The organic will of the people. 

.The notes of sovereignty, a. Supremacy. 6. Authority, c. In- 
dependence, d. Unity, e. Majesty. 

Its substance, a. It is inalienable, b. It is indivisible, c. It is ir- 
responsible to any external authority, d. It is the power in 
the political people to determine the form and order of its own 
political life. 

The sovereignty in law. 

Definition of law : The necessary elements in civil and political law : 
note on the distinction of public law and private law. 

Government. 

CHAPTER IX. 
The Nation and its Constitution 144 

The twofold character of the constitution, a. The historical consti- 
tution. 6. The enacted constitution. 
The convention. 

1. The nation precedes the constitution. 

2. The constitution has the form and style of law. 

3. The nation may amend the constitution. 

4. The nation is to apprehend in the constitution, its conscious 

object and aim. 

5. The right of revolution. 

On the relative and positive character of the political constitution. 

CHAPTER X. 

The Nation and its Rights of Soveeeigntt . . . .159 

1. The right to self-preservation : the habeas corpus, 

2. The right to declare war and to conclude peace. 

3. The right to form international relations, by treaty, etc 

4. The right to coin money. 

6. The right to eminent domain. 

CHAPTER XI. 
Thb Nation and its Normal Powers 171 

The legislative, executive, and judicial powers : note on the historical 
definition of these powers itt political science. 



Xll CONTENTS. 

VAU 

These powers are: a. Organic, h. Coordinate, c. Coexistent. 

a. Correlative. 
The distinction in these powers. 
The defect in the representation of their division : the argument of 

" the Federalist." 
The relation of these powers to the physical force of the nation : the 
military. The declaration of martial law, or the suspension of 
the habeas corpus. 
a. The legislative department 
h. The executive department. 
c. The judicial department. 
On the relation of the judiciary to the legislative power : the polit- 
ical province of the judiciary. 

CHAPTER Xn. 

The Nation and its Representative Constitution . . 210 

The representative government. 

The principle of representation as defined in theories : that the gov- 
ernment is formed : a. In the representation of interests, b. 
Of families, c. Of numbers, d. Of properties or accidents 
attaching to men. 
The Republic formed in the representation of persons. 
The law of representation. 
a. Its historical justification. 

6. Its realization of the sovereignty of the people : self-government, 
c. Its realization of the nation as a moral organism. 
The Republic formed in the Democratic principle. 
On various qualifications, a. A property qualification. 6. A lit- 
erary qualification. 
On the representation of public opinion. 
On the representation of minorities. 

CHAPTER Xm. 

The Nation and its Relation to othee Nations . . . 251 

The external sovereigQty of the nation. 

The right of recognition. 

The authority and province of international law. 

CHAPTER XIV. 

The Nation and the Individual 258 

The ancient and modem representation. 
The laws of their relation and development. 

Che freedom of the individual. 

*n the defect in the representation of individualism in some recent 
theories. 



CONTENTS. XUl 

CHAPTER XV. 

turn 

Thb Nation and the Family 276 

The necessary and moral interrelation of the nation and the family. 
The obligation of the nation to maintain the moral order of the family. 
Note on the representation of the relation of the family and the na- 
tion in Shakespeare. 

CHAPTER XVI. 
Thb Nation and the Commonwealth 283 

The formation of society in, a. The family, b. The commonwealth. 

c. The nation : 
Note on the historical growth of this conception in political science • 

Aristotle. Hegel. 
The commonwealth is 

a. The civil organization : it is defined in the jural relations of so- 

ciety. 

b. The economic organization : it is defined in the necessary rela- 

tions of society. 
It is constituted in the maintenance of civil rights and civil order. Its 
procedure is in the common law. 

a. The unity of the commonwealth. 

b. The scope of the commonwealth. 

Its historical growth. Its illustration in the constitution of the Com- 
monwealth of Pennsylvania. 

The institution of courts. The civil court. The constabulary. 

The relation of the nation and the commonwealth. 
a. The nation is immanent in the commonwealth. 
6. The nation is external to the commonwealth. 

The commonwealth is the civil corporation. Its formal rights. 

The concurrent powers of the nation and the commonwealth. 

The law of their relation. 

The commonwealth as defined in theories, a. They are vast corpo- 
rations having their origin in some charter and continuing 
with certain vested powers, b. They are separate political so- 
cieties, each existent in the original sovereignty of an inde- 
pendent political power, c. They form an organic whole, in 
whose complex political organism the States exist each as 
an original integer : theory of Mr. Hurd and Mr. Brownson. 

On the distinction of a central government and a local administration. 

CHAPTER XVII. 
The Nation the Antagonist of the Confederacy . , 321 

The confederate principle. 

Its definition by Montesquieu ; by Freeman. 

Its appearance in the formal constitution in an age of political trans- 
ition 

The conflict of the confederacy with the nation in its organic and 
moral unity. 

The lustorical conflict in the United States. 



XIV CONTENTS. 

CHAPTER XVm. 
Hhb Nation the Antagonist op the Empirb .... 842 

The imperial principle. 
The law of aggrandizement in the empire. 
The subversion of the moral life and development of the people. 
The subversion of the freedom of the people : its fatalism. 
Its illustration in Spain ; in Austria. 

The conflict of the empire with the nation in its organic and moral 
unity. 

The confederate principle in Greece. 

The imperial principle in Rome. 

CHAPTER XIX. 

The Nation the Integral Element in Histokt . . , 355 

The vocation of the nation in history : history a development in the 

realization of the moral order of the world. 
The nation formed in the conditions of history. 
The conflict of the nation with slavery. 
The conflict of the nation for humanity. 

The moral order of the world, the fulfillment of humanity in God. 
The church and the nation. 
The Protestant principle. 
The nation, the Christian nation. 

CHAPTER XX. 

The Nation the Goal op Histost • S8S 

Conclusion. 



THE NATION. 

CHAPTER I. 

THE SUBSTANCE OF THE NATION. 

The premise of political speculation has been the as- 
sumption of the existence of man apart from the state. 
It has portrayed an age when the conflict of right and 
wrong was unknown : there was in the lives of men no 
care, nor toil, nor endeavor ; there was neither chief nor 
law, neither soldier nor battle ; there was no judge nor 
police, no plaintiff or defendant ; there was neither mar- 
riage nor homes ; property was unrecognized, no bound- 
aries of land were traced, and the ample gifts of the earth 
were held by all in common ; the individual existed in the 
fullness of all his powers, while yet, as in the traditional, 
and the ancients say derisive, line of Homer,^ — 

" No tribe, nor state, nor home hath he." 
1 Thig imaginary state is drawn by the old counselor, in the Temped:-^ 

''^Gon. — I would by contraries 
Execute all things; for no kind of traffic 
"Would I admit; no name of magistrate; 
Letters should not be known; riches, poverty, 
And use of service, none; contract, succession, 
Bourn, bound of land, tilth, vinej'ard, none; 
No use of metal, corn, or wine, or oil; 
No occupation; all men idle, all; 
And women too, but innocent and pure; 
No sovereignty. 

All things in common nature should produce 
Without sweat or endeavor: treason, felony, 
Sword, pike, knife, gun, or need of any engine. 
Would I not have ; but nature should bring forth, 
1 



2 THE NATION. 

But tins scene, as it is traced in political speculation, 
soon closed, its course was interrupted and disturbed , 
the impulses of men arousing, brought them in collision ; 
strono- desires came to clash with each other : there was 
the necessity for toil, and the lives of men were harassed 
with care ; there was division, and distrust was provoked ; 
then some power was required to maintain the imperiled 
security, to punish fraud and restrain violence ; and thus 
the state came into being ; its origin was in necessity, and 
its form was that of a repressive force in the institution 
of an external order. 

The same premise, in the assumption of the contrasted 
picture, has represented the primitive condition as char- 
acterized by every evil. It was a constant warfare ; fear 
and self-interest directed human action ; the grasp of 
avarice brooked no limit ; hatred was the habitude of 
men ; tumult and violence alone prevailed. Then it i8 
conceived that the state came into being, as an evil also, 
but slighter and sooner to be borne than those which ex- 
isted apart from it, and as before in the form of a repress- 
ive force. 

These imaginary pictures divest man of the actual cir- 
cumstance and the actual relations of life. They are only 
abstractions. There is no trace of the natural man, and of 
the primitive age which they portray. They are assumed 
as the necessary material out of which to construct the 

Of its own kind, all foison, all abundance, 
To feed my innocent people. 

"/Se&. — No manying 'mong his subjects? 

'''■Ant. — None, man; all idle: whores and knaves." 

The Tempest^ act ii. bc. 1. 

In contrast to this, Shakespeare has represented the actual condition of man 
apart from society, in the Caliban. This condition is not ascertained from the 
fragmentar}'- traces of savage life, for in the lowest stage of the actual condition 
of man, there is the recognition of some relations, some principles of associ. 
ation, and some authority, in the will of a chief or the sanction of custom. Tht 
most exact representation of this condition is thus in some assumed character 
as the Caliban. 



THE SUBSTANCE OF THE NATION. 3 

artificial systems of political schools. The}* Lave no 
foundation in the nature, or in the history of man. 

The position of Aristotle is the necessary postulate of 
political science, — " Man is by nature a political being." 
The elements of the nation are in his nature, and its prog- 
ress is in the development of his nature. The earliest 
and the widest records of his existence disclose a condition 
in which there is the recognition of some common relation, 
and men appear as dependent upon each other, and as 
seeking association with each other ; they make sacrifices 
for it, and accept obhgations in it. 

The nation has its foundations laid in the nature of 
man. It is the normal condition of human existence. 
There is in it, as the organization of human society, the 
manifestation of human nature. The nature of man, apart 
from the nation, is unfulfilled ; and in the individual, in his 
isolation, the destination of humanity is unrealized ; the 
old w^ords are verified, unus homo, nullus homo. 

The nation, therefore, is not to be regarded as an ark- 
fice which man has devised, nor as an expedient suggested 
by circumstance, to secure certain special and temporary 
ends. It has other ground and other elements. It is 
often described as a contrivance of human skill, and gov- 
ernment as the cunning or clumsy device for the accom- 
plishment of certain objects in certain transient periods. 
A recent writer, identifying government with the nation, 
says it is " a machine for applying certain principles," etc. ; 
but even as an illustration, this conveys a misconception. 
The machine, when it is made, is apart from the maker, 
and complete in itself, and separate from the power which 
impels it ; but the nation never exists as a complete 
construction, and always is in identity with the people. 
The nation, moreover, cannot be moved as a machine, but 
has in itself thought and will and power to do or not to 
»lo, and capacity to suffer or rejoice. The nation e^-isU, 



4 THE NATION. 

onlv as men are lifted out of a mechanical existence : in it 
there is the assertion of their determination, and their free 
endeavor. And man does not owe the conception of the 
nation to the genius of an individual, nor is it the in- 
vention of a separate age. The highest ingenuity could 
not have compassed it, and it is not to be counted among 
the achievements of human wisdom. The machine a^so 
wears out, with time and use, when another is made in its 
stead ; but it is not thus with states, and there is no law of 
physical necessity which thus limits them. 

This representation of the nation as a mechanism — the 
work of human craftsmen — is the root of the confusion 
which appears in the definition of man's savage or rude 
condition as the " natural state," and the emergence from 
it into civilization, as the " artificial state." It is the dis- 
tinction, on the assumption of which so many social schemes 
and such vast social theories of natural and artificial society 
have been built. The law of Aristotle has here its appH- 
cation in political science, — ■ " The nature of that which 
is, is to be ascertained from its mature condition ; " not 
in its germ, nor yet in its decay, but in its fullness and its 
perfectness do we discern the true nature of a thmg; 
or, what every being is in its perfect condition, that cer- 
tainly is the nature of that being.^ 

1 Aristotle's Politics, bk. i. ch. 2. 

R. von Mohl, in one of his later works, represents the state as only one 
Vi the successive spheres of human life which he enumerates as the sphere 
)f the individual, of the family, of the race, of societ}'^, of the state, and of the 
wssociation of states in their international relation. The special characteristic of 
this description is the distinction of society and the state ; the former is described 
as the common, yet the unorganized and the unformed life of man. But this dis- 
tinction has no justification, and in it society in itself is undefined, and every 
trait which is drawn to give to it a positive substance and form is derived from 
what is represented as another sphere — either that of the individual, or of the 
state. When it is further said that there is a law and rights belonging to society, 
as apart from the state, which yet have the character of neither national noi 
common law, and of neither political nor civil rights, the abseflce of all ground 
for the distinction becomes still more apparent, for law and rights presume an 
organic life and an organized society. R. von Mohl, EncyMopadie der Staatsun^ 
ienschaften, p. 17. See also Bluntschli's Geschiehte, p. 616. 



t 



THE SUBSTANCE OF THE NATION. 5 

The nation is a relationship. Tliey who exist in it are 
not held only by some external force, and are not bound 
only by some formal law. In the sketches given of ex- 
istence apart from society, the state was represented as 
if men entered it from a condition of individual isolation, 
and as itself the resultant of their individual accession. 
This isolation is unreal ; it is the atomy of the state, which 
regards it as the collection of so many units. It is a 
premise which is devised to sustain political systems and 
political abstractions. The isolation of men presumes a 
conception which is inhuman, and it is not in its separation 
but in its relations that humanity is comprehended. If, 
moreover, this isolation be allowed, it does not furnish the 
elements out of which the state can be formed, and it can 
suggest no law in which the transition to the state may be 
made. 

The origin of the state is not in some speculative 
theory nor in some formal scheme. The entrance to it is 
not through a reflective process, nor by an act of individ- 
ual volition. It has the characteristic of all relationships, 
in that it has not its beginning in a reflective or a volun- 
tary act, while in it the individual is conscious of existence 
as a person. 

It is not, in its normal course, out of a condition which 
is external that men enter the nation, but they are born in 
it, and it has the natural condition of relationship. 

The recognition of its law, and the obedience to its au- 
thority, is not then conditioned upon the arbitrary choice 
of those who constitute it, but in reference to it the arbi- 
trary action of the individual is precluded. 

It is a common relationship, and there are none exempt 
ft'om its conditions, and none in the nation can make their 
lives to be as if it had not been. There are none unaf- 
fected by it, but each is involved in every moment of its 
existence. 

In the politics of Aristotle, human relationships — th* 



6 THE NATION. 

man and woman, the father and mother and child — are ap- 
prehended as the sign and suggestion of society, by which 
its existence is suspected, and in which its principle is con- 
tained. Then the constituents of society are sought in a 
house, but the family is not therefore the lesser state, nor 
the state simply a collection of families, since each has 
its own nature and end, w^hile each as a relationship has 
therein its elemental principle. It was in the visionary 
republic of Plato that all relationships were swept away 
as antagonistic to its ideal unity, but as the nation is ap- 
prehended as itself a relationship, these are apprehended 
as integral in it and correspondent to it. • 

There is for the family, apart from the nation, a neces- 
sary^ imperfectness, as also they will hold best the relation 
of citizenship who hold best the relation of brothers and 
nusbands and fathers. 

The nation is subject to the conditions of all relation- 
ships. If the consciousness of them perish, the art of man 
can devise no substitute. Their strength can be supplied by 
no artificial bond, however subtly forged. They are deep 
as life, and in their mysterious power there is the holiest 
communion, so that their only illustration in the physical 
world is in the vine and the branches, and the body and 
the members. 

It is thus that citizenship has its significance as a rela^ 
tionship. It is not carelessly that human lips have called 
their country the father-land ; nor is it with vague and idle 
phrases, but in a spirit of holy and son-like sacrifice and in 
solemn crises, that men have turned to their country as the 
mother of all. 

TJie nation is a continuity. It no more exists complete 
in a single period of time than does the race ; it is not a 
momentary existence, as if defined in some circumstance. 
It is not composed of its present occupants alone, but it em- 
braces those who are, and have been, and shall be. There 



THE SUBSTANCE OF THE NATION. 7 

is in it the continuity of the generations, it reaches back- 
ward to the fathers and onward to the children, and its 
relation is manifest in its reverence for the one and its 
hope for the other. 

The evidence of this continuity is in the consciousness 
of a people. It appears in the apprehension of the nation 
as an inheritance, received from the fathers, to be trans- 
mitted unimpaired to the children. This conviction, that 
has held the nation as an heritage worth living and worth 
dying for, has inspired the devotion and sacrifice of a people. 

The evidence of this continuity is also in the fact that 
the spirit of a people always contemplates it. The nation 
has never existed which placed a definite termination to 
its existence — a period when its order was to expire and 
the obligation to its law to cease. It cannot anticipate a 
time when it shall be resolved into its elements, but con- 
tends, w^ith the intensity of life, against every force which 
threatens dissolution. Those who have represented the 
state as a compact, have yet held it to be a perpetual one, 
in which the children are bound by the acts of their fathers. 

This continuity is the condition of the existence of the 
nation in history. The nation persists through a form of 
outward circumstance. Judaea was the same under the 
judges and under the kings ; Rome was the same under 
the kings and under the consuls. The elements of the be- 
ing of the nation subsist in this continuity. In it, also, the 
products of human effort are conserved, and the law of 
human production conforms to it. The best attainments 
pass slow^ly from their germ to their perfectness, as in the 
growth of the language and the law, the arts and the liter- 
ature of a people. Chaucer and Spenser, through intervals 
of slow advance, precede ShaKespeare, as Giotto and P'?ru- 
gino lead the way to Michael Angelo and Raphael. 

The nation is a continuity, as also in itself the product 
of succeeding generations. It transcends the achieve- 
ment of a single individual or a separate age. The life of 



8 THE NATION. 

the individual is not its measure. In its finiition there is 
the work of the generations, and even in the moments of its 
existence the expression of their spirit, the blending of the 
strength of youth, the resolve of manhood, and the experi- 
ence of age — the hope and the aspiration of the one, the 
wisdom and repose of the other. There is the spirit which 
is always young, and yet always full of years, and even 
in its physical course the correspondence to an always re- 
newed life.^ 

This continuity has found expression in the highest po- 
litical thouglit. Shakespeare has it in his historical plays ; 
the continuity of the nation is represented as existing 
through the years with the vicissitudes of the people, in 
the changes of scene, with the coming and going of men ; 
and there is as in the nation the unity of the drama in 
which so many actors move, and whose events revolve 
from age to age ; and thus these plays hold an attraction 
apart from the separate scenes and figures which present 
some isolated ideal for the poet to shape. Burke has rep- 
resented this continuity in the nation as moving through 
generations in a life which no speculative schemes and 
no legal formulas may compass : " The nation is indeed a 
partnership, but a partnership not only between those who 
are living but between those who are living, those who are 
dead, and those who are to be born." 

The life of the individual is brief, but in the nation it 
may ,become a continuous power. The character of 
Achilles may have a worth for all in its abstract ideal, 
but in the history of Greece it was always a living energy. 
They who have been the leaders of a nation in the strength 
and nobleness of their lives are always in a vital relation 
to it. The traditions of valor and sacrifice in the memory 
of a people become the inspiration of its hope. 

The work of the individual is brief also, and m its isolac 

1 Nee temporis unius, nee hominis, esse constitutionem Keipublicae. — Cicero 
De Republican bk. iii. ch. 21. 



THE SUBSTANCE OF THE NATION. 9 

tion would be almost vain, but in the continuity of the na- 
tion it is enwrought in the longer social development. 
Thus, also, a single generation, in its furthest advance, 
achieves but little in comparison with the long line of the 
generations in the nation, and if there is laid on any the 
necessity of battle, still the holiest triumph is that in which 
the life of the nation in its continuity is maintained. 

The nation is an organism. It has an organic unity, it 
is determined in an organic law, and constitutes an organic 
whole. There is a political truth whose worth may be 
measured against the sciolism of many recent theories, in 
the ancient words, — "As the days of a tree are the days 
of my people." The nation is shaped by no external force, 
but by an inner law ; its changes are those of a develop- 
ment ; its strength appears in its regarding all division as 
the sundering of life ; and the glory of the people has been 
not in the uprooting, but in the maintaining and advancing 
of the work of its ancestors. This imparts to the people 
an energy which does not wholly perish in the waning of 
its years, it breaks the external bonds which fetter it, and 
flourishes amid the vastest historical changes. 

The nation, as an organism, has the characteristic of 
every organism — unity and growth and identity of struc- 
ture. It has not merely an apparent sequence, nor a con- 
structive force, but is a development after an organic law. 
It is not a confused collection of separate atoms, as grains 
of sand in a heap, and its increase is not through their ac- 

umulation. It has the unity of an organism, not the 
aggregation of a mass ; it is indivisible ; its germ lies 

^eyond analysis, and in it is enfolded its whole future. 

This unity is the postulate of the existence of the people 
as a nation, and the condition of its independence. An 
identity of structure also pervades the whole. Thus the 
defect of a part injures the whole ; and if a part bo sev- 
ered it ceases to exist, as tne limb which is cut from the 
body, or the branch from the tree. 



10 THE NATION. 

The nation, therefore, is not something which can be 
torn down, and then from the old material built up again 
in other nations. It is planted, it is not made. It is not 
constructed out of preexisting parts, but is an whole, and 
the law of Aristotle holds, — the whole is before the parts ; 
that is, a whole cannot be made of parts, but the whole 
is predetermined, to which the parts belong, or it is only 
in the conception of the whole that the parts appear. A 
sum or aggregate can be composed of separate units, but it 
is only their mass, and there can be predicated of it neither 
unity nor growth, nor identity of structure. 

The law of an organism defines the relation of the indi- 
vidual to the nation. They who form the organic whole, 
in their relation to it, and to each other, are its members. 
Its bond is not formal ; its action is not mechanical. The 
members are formed in and through it, as they form it, and 
are not as the wheels in mills, and the shuttles that slide in 
looms, but the members of a living body. They are affected 
by it, not as by an external force, acting on component 
particles, but as by a living spirit working through the 
whole. The laws of life in the physical body do not act 
with more unvarying certainty than in the body politic. 

The consciousness of this organic relation, is the ground, 
also, of the normal action of the individual. Hegel says, 
the mob in a nation is the force which acts without or 
apart from the organization of the whole. Tliere may 
thus be an ignorant or a learned mob, a mob of men of 
fashion or of men of science, but the spirit is the same, and 
in its severance from the organic people there is the same 
essential vulgarity. This has an illustration of singular 
force in one of the political plays of Shakespeare. When 
Caius Marcius turns to the crowd in Rome and denounces 
them as the detached and disorganized rabble, in w^honj 
there is nothing of the organic unity of the people, the dis- 
dain of the Roman is in the words, " Go, get you home, 
)rou fragments ! " and those who in the conceit of culture 



THE SUBSTANCE OF THE NATION. 11 

or of wealth, or of higher interests, or of spiritual endow- 
ments, withdraw from the normal political action of the na- 
tion, are obeying the impulse of the mob, and are as the 
very fragments, for whom the Roman patrician felt such 
unmeasured scorn.^ 

The antithesis to the nation as an organic unity, is in 
the conception which frames it upon abstractions. It as- 
sumes a certain scheme of rights, or system of laws, and 
then proceeds to construct the state out of these rights, 
or sets it forth as the product of this formal law. These 
assumptions are destitute of an historical foundation, and 
arise in the empty notion that men by a reflective act can 
constitute the nation, and that it exists as the sequence of 
an abstract conception. The most disastrous of political 
falsehoods is this, which in any form holds the nation in 
identity with a legal or dialectical system, and then pro- 
ceeds to its construction, after the design of the abstract 
reason. It is destructive, and the whole existent order is 
constantly liable to be razed, in order to substitute an 
imaginary polity in its stead. 

The apprehension of the nation as an organism, is the 
condition of political science. It involves the distinction 
of an art and a science ; there may be, for instance, an art 
in building heaps of stones, but there is no science of stone- 
heaps. The unity and identity of structure in an organ- 
ism, in which a law of action may be inferred, form the 
condition of positive science. 

This is the source, also, of constructive political power, 
and of all that is enduring in the work of the statesman. 
In the recognition of this fact — of the organic being of 
the state — the most is gained, says Bluntschli, for the 
practical study of political subjects. And it is significant 
hat political writers of grasp and wide influence, as 
Spinoza and Hobbes, proceeding from a premise which 
precludes the organic unity or being of the state, have yet 
1 See Maurice, The Workman and the Franchise^ p. 9. 



12 



THE NATION. 



been led to represent it as a living body, and have de- 
scribed it as some colossal man. This conception, when 
pi'esented by those whose postulate is the contractual ori- 
gin and definition of the state, indicates the reality of its 
existence as an organism. 

It is also significant that the assertion of the nation as 
an organic unity, in modern political thought, should have 
proceeded from the historical political school. Savigny, 
who may be named as its representative, describes the na- 
tion as " the organic manifestation of the people." ^ Yet, 
the necessary conception of the nation as an organism 
transcends the limits of an historical school, and while the 
roots are traced in the past, there is necessarily a continu- 
ous development, and it passes into the future in the un- 
folding of its own germ. In the forgetfulness of this, the 
historical school reverts only to the past to dwell among 
its forms, and, as the sense of a living continuity and en- 
ergy fades away, it becomes of all schools the most dry and 
barren. 

But although the nation is organic, it is not limited to 
the definition of a physical organism. Its description in 
this logical limitation is often repeated ;2 it is said, for 
instance, that the nation, as the individual, passes through 
the necessary periods of youth, manhood, and age ; that 
it flourishes, and after maturity ceases to exist — its bloom 
is followed by inevitable decay. The deeper truth is in 

^ Savigny's Syst. des Rom. Rechts, vol. i. p. 22. 

" In every separate people the universal spirit of man manifests itself in an 
individual way, and the growth of rights has a common social ground." — Syst. 
des Bom. Eechts, vol. i. p. 20. See Bluntschli's Allgemeinm Statsrecht und der 
Politik, p. 568. 

2 "As men are born and live for a certain period, and at last die of age or in- 
firmity, so also states are constituted ; they flourish for some centuries and then 
at last cease to exist." — Frederick II., Antimacchiavelli, ch. ix. 

Mr. Soencer says, — " We find not only that the analogy between societ}'^ and 
a living creature is borne out, but the same definition of life applies to both.'* 
— Social Statics, p. 490. It may be doubted if the elaborate analogy which Mr. 
Spencer draws, carried as it is through the detail of a minute anatomy, has any 
justification. The description of an exact correspondence to the physical or 
gMiism often serves as a display of anatomical science. The literature of poUr 



THE SUBSTANCE OF THE NATION. 13 

the words of the Roman statesman, — " The state is 
formed for eternity." ^ 

The nation is a conscious organism. It is the conscious 
life of the people ; it knows its own object and the purpose 
which is given it to falfill. Its action does not proceed 
from mere impulse, and it is not directed by a merely aim- 
less energy, but there is in it that conscious spirit which 
apprehends an object before it, and apprehends it as its 
own. " The nation," says M. Thiers, " is that being 
which reflects and determines its own action and purpose." 

It has a determinate end, and apprehends in its own 
conscious purpose its vocation in history. This conscious- 
ness of a vocation enters into the spirit of every his- 
torical people, and is the basis of its historical life. 
The nation has in correspondence to its vocation a de- 
terminate character : its character is the manifestation of 
the purpose it has realized in its vocation. Its character 
becomes thus as clearly outlined as that of its foremost men. 
Rome has a character as distinct as that of Csesar, and 
Greece as that of Pericles. 

The conscious life and vocation of the nation appear in 
the spirit with which it invests its members, and those who 
are called to the execution of its purpose. There is a 
quality in its membership which is distinct from that in 
a life withdrawn from it, and there is a spirit in the fulfill- 
ment of its trusts and offices which it alone imparts. 
When the thought and action of the members and officers 
of a nation become empty routine, the mere work of 
functionaries, there is the sign of the loss of a living energy, 

ties has many monograms on this correspondence, in which for instance the 
members of the political society are compared to the cells, and the legislative 
power to the head, or the economj to the stomach, and so on; but they are 
mainly subject to the criticism of von Mohl, — " These conceptions of the state 
and its correspondences based upon physical science appear from time to time, 
partly through an altogether sickly tendency of thought, and partly through a 
mystical and fanciful conceit." — Encyklopadie der Staatsmssenschaften, p. 84. 

1 " Debet enim constituta sic, esse civitas ut »tema sit." — Cicero, De Repidh 
Kca^ bk. iii. ch. 3. 



14 THE NATION. 

and the decadence of a people. It has been said that 
there was in the office of a Roman consul an inherent 
majesty, which often gave dignity to a person of ordinary 
character, and ennobled him with its spirit ; and there is 
in the office of a representative of the people a power 
which may lift the possessor above the divisions of party 
and the interests of factions, so that he is made to stand 
in a living relation to the nation, whose work and pur- 
pose is to be wrought through him. It is thus, also, 
that one who is called to a public trust or office in the 
nation, is not simply a private person, nor to be so re- 
garded. 

The conscious life of the people appears in its literature 
and arts, its manners and laws. These are moulded in the 
type of the individual life of the nation, so that with the 
universal element in literature and art and law there is the 
individual element in which the characteristic of the peo- 
ple is traced. These not only bear the impress of its pe- 
culiar type, but there is in its being the field of their 
growth. The constructive polity, and the art and litera- 
ture of a nation, thus terminate with its historical course. 
There may be great works produced after its close, but 
their root was in the past, and with its decay they soon 
cease ; as there were solitary great Grecians and Romans 
after the loss of the national life of Greece and Rome, but 
the line soon expires. Their spirit can survive in no other 
people, and their work can be resumed by none. The 
Turks gain possession of Greece, and the French of 
Egypt, but the monuments and arts do not belong to 
them, they do not recognize their spirit in them, and can- 
not continue them. All that England can do with the 
sculptures called the Elgin marbles, is to place them in a 
museum. 

This consciousness of the vocation of the nation, how 
ever reluctantly acknowledged or dimly apprehended, has 
been stronger than the individual intention of its members 



THE SUBSTANCE OF THE NATION. 15 

It has determined the course of the greater in the succes- 
sion of its leaders and its kings, and has turned them 
from their individual bent, when they could not warp it to 
their own use. In England and France the greater rulers, 
as Henry VIII. and Louis IX., have been those who have 
held the best apprehension of and given the clearest expres- 
sion to this vocation ; and kings and ministers who have 
sought to thwart it, or even failed to be penetrated by it, 
have been set aside, or, as illustrative of its weakness in 
some ages, are left to stand as passive figures in its lines. 

In the conscious life and vocation of the nation, there is 
the ground of its identity of purpose, through the suc- 
ceeding generations. Its purpose is transmitted from the 
fathers to the children. The consciousness of its destina- 
tion becomes clearer in the advance, as it fades in the 
degeneracy of the people, and is obscured in the prece- 
dence of selfish interests, and at last blotted out in stu- 
pidity and slavery. Thus, also, the early incident of a peo- 
ple may contain the premonition, and its historical epochs 
and crises the revelation, of its vocation. There is through 
all the same great promise, the same memories, and the 
same hopes. The longer years alone are its measure. 
The calling of the nation thus may endure through hu- 
miHation and defeat, and through evil days, when there 
is only a remnant left who keep its ancient faith and 
guard its errand from forge tfiiln ess. 

This is held slightly by the teachers of the technic of po- 
litical art, and by those who would limit politics to political 
economy, but the consciousness and the fulfillment of the 
vocation of the people are the condition of its power ; this 
vocation is the postulate of national character and national 
^eedom. The people has in it no external limitation 
which impairs action, but is strong and free only as it 
works it out. The people that fails to hold its calling 
carefully and reverently cannot attain a strong national 
life, and weakness and inevitable disaster result when its 



16 THE NATION. 

purpose is but feebly grasped, and servility and degradation 
when it becomes the imitator or the copyist of another. 

The nation is a moral organism. In the necessary ele- 
ments of its existence in history it transcends the merely 
physical conditions of a physical organism ; and in free- 
dom, aud law, and order, in the fulfillment of a conscious 
purpose and vocation, and in the obligation to law, are the 
very elements of a moral being. 

It is a moral organism ; that is, its members are persons 
who subsist in it, in relations in the realization of person- 
ality. It is the condition in which a person exists in the 
fulfillment of the relations of life with those who are per- 
sons. There is in it the assertion of a justice, which is the 
affirmation of a person in the recognition and institution of 
these relations between the moral whole and the moral 
parts of the whole. Its law is regulative of the moral 
whole, and of the parts, in these relations. 

It is as a moral organism that the nation is the field 
of the action of man, in law and in freedom. There is, 
therefore, in it the education of the individual, the growth 
and formation of character. There is in its normal devel- 
opment the coming into the world of that which is laid in 
the nature of humanity, in its true and original constitu- 
tion. 

It is as a moral organism that there are in the nation 
the conditions of the moral life of the individual. In the 
assumed isolation of man there is the negation of the moral 
life which is formed in moral relations. Thus all the re- 
lations of life in its moral order are constituted in the 
nation, and are to be maintained through its institutions 
and by its enactments.^ 

It is as a moral organism that the nation is the sphere 

1 " Whosoever laj's violent hands upon the state, assails the conditions of al[ 
moral life, and therefore the crime is regarded as the greatest." — Trendelen> 
burg, Naturechte aus dem Grande der Ethik, p. 286. 



THE SUBSTANCE OF THE NATION. 17 

of the individual person. The fact of a vocation cannot 
consist with his isolation. It presumes an existence in a 
conscious relationship, and its fulfillment is in the relations 
of a moral order. It is thus that there is formed in the 
nation the consciousness of the relationship of humanity, 
and the moral life of the individual is apprehended in it as 
the life which is truly human. 

The process of the nation is only as a moral organism. 
It is not constituted in the necessary process of the phys- 
ical world, but it is constituted in the order of a moral 
world. Its course is defined in law, and in law as pre- 
scribing the actions and relations of men as moral agents. 
Its attainment is in freedom. Its goal is peace, and that 
not in the barren conception in which there is the nega- 
tion of purpose and energy, but peace as the conquest of 
man, in which there is the satisfaction of his spirit and the 
achievement of his aim. 

The conditions of history presume the being of the na- 
tion as a moral organism. History is not a succession of 
separate events and actions, but a development in a moral 
order, and in the unity and continuity of a life which moves 
on unceasingly, as some river in its unbroken current. 
But it is only as the nation is an organism that this unity 
and continuity is manifest in it, and as a moral organism 
that this moral order is confirmed in it. 

The nation thus cannot be comprehended in the defini- 
tion in its logical limitations of a physical organism. The 
distinction of a physical and a moral organism is necessary, 
and becomes the illustration of the being of the nation, in 
its necessary conception. It is as follows : — 

The physical organism is determined in itself by a law 
of necessity, as the tree which cannot be other than it is : 
the ethical organism is determined in a law of freedom, 
which is the condition of moral action. In the physical 
organism, each member exists only in its relation to the 
whole, as, for instance, the hand is nothing without the 
a 



18 THE NATION. 

body, and has no separate significance : in the ethical or- 
ganism, each member has in itself a necessary significance, 
and each member, furthermore, has the destination in itself, 
for which the whole exists, and which the whole has in 
itself. The whole subsists in the same relation and has 
the same destination as the individual, and neither the 
whole nor the individual has a secondary existence, nor 
can be made only a means to the end of another. In the 
physical organism, the elements which are atomic, under 
a law of combination, are taken up and separated again, 
and as they pass back into unformed nature, it is only to 
reappear in other and manifold forms : in the ethical or- 
ganism, the members are individuals existing each in his 
own identity, and each is so related to the whole that 
instead of a construction after the exclusive type of the 
whole, it is indifferent to say that the individual has his 
type in the whole, or the whole its type in the individual. 
In the physical organism, the changes are through neces- 
sary periods, as youth and age, or spring and autumn, and 
the elements which are chemical, and so on, are formed 
after the law of these periods ; but in the ethical organ- 
ism the process, is not through the periods of a necessary 
sequence, and its members exist in each moment of its ex- 
istence in uninterrupted relations of youth and age. Its 
life consists in the constantly unfolding life of humanity.^ 

i The logical fallacy of defining an ethical by a physical organism, and limit- 
ing the one to the conception of the other, appears in Draper's Civil Polity. The 
description of the growth and maturity and decay of nations is repeated with a 
solemn monotony, as if history was an unbroken succession of funereal pag- 
eants. But the nations do not exist in history in this limitation in a physical 
sequence; they appear under the conditions of amoral life, and their growth or> 
decay is traced not in necessary, but in moral causes. 

There is in the same school the utter denial of the real freedom of the individ- 
ual and the nation, when it aims to define freedom only in the limitations of a 
physical necessity, and the mind of man is regarded only as involved in the 
physical process of nature. Yet not infrequently exhortations are made in th« 
same school on the beauty, or the duty, or the excellence of political morality 
and these may be often the expression of an emotive fervor or of prudent counsel* 
but they can avail little when they are connected with a merely economic con 
ception of the nation, and are separated from their only consistent postulate ii 
its organic and moral being. 



THE SUBSTANCE OF THE NATION. 19 

The nation is a moral personality. This is the condi- 
tion of its vocation, as in the fulfillment of its vocation there 
is the formation of its character. The moral personality 
of the nation is determined in its consciousness ; in its 
conscious purpose subsists its independence of other na- 
tions, that it is not to be necessarily what they are nor as 
they are. Its object is before it, which it knows as its own ; 
its freedom is in the working out of its vocation, and in its 
goal th(3re is the satisfaction of its desire. 

The condition of the realization of personality is the 
same in the nation as in the individual. This condition in 
each is the clearness and fullness in which it comprehends 
its purpose and is centred in it. The source of strength 
is, as with the individual, in working faithfully after the 
type of its own individuality, and bringing this to its free 
and clear development. The being of the nation is, 
therefore, not merely in an apparent sequence, but in 
conformance with the law which is laid in its being. 

The scope of the nation thus is not exhausted by, and 
its powers are not derivative from a sphere of outward cir- 
cumstance ; it is not comprehended in a summary of enact- 
ments nor defined in an abstract system. The only Kmit- 
ation is its self-limitation in its being, as a moral person. 
In this is the postulate of its law and the line of its progress. 
There are no bars or barriers before the course of the free 
spirit of the people, and the nation moves in its advance 
towards the higher personality which is realized in its 
vocation, which is of God, in history.^ 

The nation is a moral person, since it is called as a 
power in the coming of that kingdom in which there is 
the moral government of the world, and in whose comple- 
tion there is the goal of history. It is a power in the moral 
conflict and conquest which is borne through history, to 
the final triumph of the good. It is a power manifest in 

1 "National character ist der gottliche Beruf, einer nation." — Stahl, PAi/o* 
Htphit des Rechts^ vol. i. p. 365. 



20 THE NATION. 

the judgment of history. But in the formal and artificia 
conception of the nation this power becomes a fiction, and 
in the mechanical conception it has no moral ground. 

The nation is a moral person, since its development is in 
an integral moral life. Its character is its own, it is not 
derivative from any powers on earth ; i^ does not proceed 
through them, and its responsibility cannot be transferred, 
nor its obligation rendered to them. It is not the vehicle 
in which another and a separate power is carried to its end, 
nor the frame-work in which another life is to be built, 
nor the shadow which in a disturbed economy falls from 
some other order or organization that alone is lifted into 
the clear light, and alone knows the triumph of the good. 
It is not the instrument for the pursuance of the vocations 
of separate individuals, which are to be held before it as 
separate and special ends, nor in the formation of the char- 
acter of certain individuals, does it alone have its end; 
but as its vocation is its own, and it is judged in it, it has 
its own end. Its ground is not in the individual, but in 
the historical life of humanity. It has for its end not the 
special but the universal ; its assertion is not of the indi- 
vidual will, but of law which is the universal will ; its in- 
stitution is not in the right of one, nor of a few, but in the 
rights of man. 

The nation is a moral person, since it is formed in a 
moral conflict. It is not merely phenomenal in its moral 
being. It is not the perfect image, nor yet the passive 
reflection of righteousness, as of something external to it, 
bat its being and the condition of its being is in righteous- 
ness. Yet it is not therefore a self-righteous power, but 
exists in the institution of rio-hteousness in the moral order 
of the world. It is formed in a real conflict. The nation, in 
the attainment of its being, is to strive. There is always 
m its freedom the possibility of evil, but in evil there is 
tlso the negation of its being. 

The being of the, nation as a moral person has its witness 



THE SUBSTANCE OF THE NATION. 21 

in the consciousness of men. It has awakened the higher 
moral emotion, and its response has been from the higher 
moral spirit. It has called forth the willing sacrifice of 
those who were worthy. The life of the individual has 
been given for the life of the nation. The offering has 
been laid upon that, which in the holiest spirit has been 
held as an altar, and life has been given in that sacrifice in 
which life is found. If the nation had only a formal 
existence, this moral spirit could have no justification, and 
if its origin was in self-interest, to call for self-sacrifice 
would be the negation of it; and if its end was only in the 
protection of the life and property of the individual, this 
surrender of them would be the immediate defeat of its 
end. 

The nation is a moral person, since it is the organized 
life of society, and socie^ is formed in the spirit and in 
the power of a personal life. It is to be governed in the 
conscious determination of the will, and to act as one who 
looks before and after. The strength which is to be 
wrought in it, exists only in rectitude of thought and of 
will ; wisdom and courage, steadfastness and reverence, 
faith and hope are attributes of it ; the highest personal 
elements become its elements and are moulded in its spirit. 

The relation of the individual to the nation presumes, as 
its necessary condition, the existence of the nation as a 
moral person. The individual becomes a person in the 
nation, and this involves the existence of the nation as 
also a person ; for personality, as it Is formed in relations, 
/•.an subsist only in an organic and moral relationship — a 
life which has a universal end. The nation is thus the 
sphere of a realized freedom, in which alone the life of 
man fulfills itself, and it is to give expression to all that is 
compassed in life. It moves toward the development of a 
perfect humanity. Its symbol is the city of an hundred 
gates, through which there passes not only the course of 
industry and trade, but the forms of poets and prophets 



22 THE NATION. 

and soldiers and sailors and scholars — man and woman 
and child, in the unbroken procession of the people. Its 
warrior bears the shield of Achilles, on which there are 
not only the figures of the mart and sea and field, the loom 
and ship and plough, but the houses and the temples and 
the shrines and the altars of men, the types of the thought 
and endeavor and conflict and hope of humanity. 

The condition of the being of the nation, as the power 
and the minister of God in history, is in its moral person- 
ality ; in this it is constituted in history as the moral order 
of the world, and for the fulfillment of that order. 

The assertion of the moral being of the nation has been 
the foundation of that which is enduring in politics, and 
has been embodied in the political thought and will which 
alone have been constructive in the state. Aristotle, who 
gave the furthest attainment of the ancient world, says, 
" The end of the state is not merely to live, but to live 
nobly." -^ Hegel, who has given a yet wider expression to 
modern thought than did Aristotle to the ages before him, 
' — and there is no other name with which the parallel may 
30 drawn, — represents the state as the realization of the 
moral, and in the moral alone it has its substance and be- 
ing. He says, " The state is the realization of the moral 
idea," ^ and " The state is the realization of freedom, and 
it is the absolute end of reason that freedom be real," ^ and 
" The state is no mechanism, but the rational life of self 
conscious freedom, the order of the moral world ; " ^ an»j 
again he says, " There is one conception in religion, and 
the state, and that is the highest of man." ^ 

There is no other conception which has such pover in 
the thoughts of men, and in this age it has the greater 
significance when it is drawn, not from a schocl of puritan 

1 Aristotle's Politics, bk. i. ch. 2. 

2 Hegel's Philosqphie des Reehts, p. 312. 
8 Ibid. p. 317. 

4 Ibid. p. 340. 

* Hegel's Philosqphie der Religion, vol. i. p. IW. 



THE SUBSTANCE OF THE NATION. 23 

politics, but from those most widely separated from histor- 
ical puritanism, and finds its expression in the literature 
of a people which is rising to great political might.^ But 
those who have been the masters of political science, and 
it has perhaps fewer great names than any other science, 
all repeat this conception. Milton says, " A nation ought 
to be but as one huge Christian personage, one mighty 
growth or stature of an honest man, as big and compact 
in virtue as in body, for look, what the ground and causes 
are of single happiness to one man, the same ye shall find 
them to a whole state." ^ Burke says, " The state ought 
not to be considered as a partnership agreement to be 
taken up for a little temporary interest and dissolved at the 
fancy of the parties. It is to be looked on with other rev- 
erence, because it is not a partnership in things subservi- 
ent to the gross animal existence of a temporary and 
perishable nature. It is a partnership in all science ; a 
partnership in all art ; a partnership in every virtue and 
in all perfection." ^ Shakespeare says, — 

" There is a mystery — witli whom relation 
Durst never meddle — in the soul of state; 
Which hath an operation more divine 
Than breath or pen can give expressure to." ^ 

1 See Eothe's TJieologische Ethih, vol. iii. sec. ii. p. 900. Stahl's Philcsophit 
ies Rechts, vol. ii. sec. 2, p. 181. Bluntschli's Allgem Stats Rechts, vol. i. p. 140. 

2 Milton's Reformation in England, Preface to bk. ii. 
8 Reflections on the French Revolution, p. 368. 

♦ Troilus and Cressida, act iii. sc. 3. 



CHAPTER II. 

THE SUBSTANCE OF THE NATION AS DEFINED IN THEORIES. 

The conduct of affairs in the nation is shaped aftei 
the conception which men may have of its origin and end, 
and yet it does not subsist in the individual and arbitrary 
conception, and cannot be made the exponent of that. It 
exists in its necessary conception, and every divergence 
from that is the building of some abstraction, or, as the 
French phrase is, " in the air," and through vagueness 
vi^ill result in feeble action, or, through defect, in negative 
action. The error in thought can involve only disaster 
in fact. 

The representations of the nation, w^hich most frequently 
recur in politics, and especially in its later phases, are 
mainly as follows : — 

The nation is represented as a necessary evil. It is a 
sequence of the evil which is in the world, and is incident 
to that. It is imposed on man to control the desires and 
lusts, and to curb the tendency with which it is said the 
inclination of his nature is toward evil. It is made neces- 
sary by the disorder and violence, the fraud and enmity 
of men, and the antagonism of self-interest, and is itself to 
be endured as only a less evil than these, and to lose its 
power as they abate, and to cease with their termination. 
It is simply repressive, and is the restraint which is neces- 
sary to check the evil drift of the world. This defines the 
state as the resultant of the existence of wrong, and neces- 
sitated by that ; it is to be apprehended only as involved 



THE SUBSTANCE OF THE NATION. 26 

in the sequence of evil, a manifestation of an estate of sin 
and misery. 

This makes a destructive force the constructive cause of 
society. But evil in its necessary character is not forma- 
tive. It creates nothing and produces nothing, it only 
consumes and destroys. It has in itself no elements of 
order, and can bring forth none. It holds no type after 
which things are to be fashioned, but only changes and dis- 
turbs them. Therefore the nation, its unity and order 
and progress, cannot be derivative from evil and an evil 
condition. 

Government, which is the central organization of the 
nation, is not an evil. Its substance is in itself good, 
and is implicit in the conception of the good. Law, which 
is the ground and expression of its authority, is in its ulti- 
mate apprehension the manifestation of the divine will, as 
has been said of it in imperishable words, '' Its home is the 
bosom of God, and its voice is the harmony of the world." ^ 
And freedom, which in the nation is constituted in law, is 
the sphere of the normal development of man. And the 
nation is not a mere negation, only a restriction of evil ten- 
dencies and an impediment to evil courses, as this theory 
assumes. It has a positive character and content. It is 
the manifestation of the life of the organic people, after a 
moral order, and in the institution of justice and of rights. 
It is a constructive power in history. It is not a local and 
temporary expedient, and its elements are not those which 
the scientific culture of another and a later age may set 
aside. It is not a fetter and a burden imposed upon the 
race, in an evil necessity, which it may gradually come in 

1 Mr. Brawnson says of government, " It would have been necessary, if 
man had not sinned, and for the good as well as for the bad. The law was pro- 
mulged in the Garden, while man retained his innocence. It exists in heaven 
as well as on earth, and in heaven in its perfectness." — The American Republic^ 
p. 18. 

" The nation is not only revealed as the power in conflict with evil, but even 
the beginning (Paradise) looked toward a development into a perfect kingdom." 
— Stahl, Philosophie des Eechts, vol. ii. sec. ii. p. 81. 



26 THE NATION. 

its progress to discard, and from which it may be ultimately 
wholly emancipated. It is itself the condition of progress, 
and in its course there is the striking off of fetters, and 
the deliverance from burdens, and a constantly increasing 
freedom. 

The representation of the nation as a necessary evil, ap- 
pears through many periods, and in many forms. It was 
the prevalent notion of the mediaeval age. It arises often 
from a want of satisfaction in the merely jural and eco- 
nomic representation of the state. The spirit of man de- 
mands something more and better than that, his hope 
and purpose look to something ampler alid worthier, and 
that offers no sphere in which he can fulfill his vocation 
or unfold his energies, and when thus conceived it comes 
to be set aside as a necessary evil in the evil of this world, 
and also as transient in its nature.^ 

1 Mr. Calhoun makes this conception the base of his political structure. He 
defines the end of government, '' to repress violence and preserve order." He 
says, " The powers must be administered by men in whom, like others, the 
individual are stronger than the social feelings," and therefore, "since they may 
be used as instruments of oppression, that by which this is prevented is called 
constitution." While this is the postulate of the argument of Mr. Calhoun's 
essay, it is significant that he should write, in one of its first sentences, "To man 
the Creator has assigned the social and the political state as best adapted to 
develop the great capacities and faculties, intellectual and moral, with which he 
has endowed him,''^ but the thought lies upon the page, and has no further 
consideration, nor does it enter into his construction of the state. Calhoun's 
Works, vol. i. pp. 7, 15, 52. Mr. Spencer is the most recent advocate of this 
theory, and presents it in its extremest shape. He says, "Nay, indeed, have 
we not seen that government is essentially immoral? Is it not the offspring 
of evil, bearing about it all the marks of its parentage? Does it not exist 
because crime exists ? Is it not strong, or, as we say, despotic where crime is 
great ? Is there not more liberty, that is, less government, as crime diminishes ? 
and must not government cease, when crime ceases, for very lack of objects on 
which to perform its functions? Morality cannot recognize it. " — Social Statict^ 
p. 230. He says again, " Government is a necessary evil" {Social Statics, p, 
25), to terminate with the evil which is assumed as the ground of its exist- 
ence; " it is a mistake to assume that government must last forever. The insti- 
tution marks a certain stage of civilization, is natural to a particular phase of 
human development. It is not essential, but incidental. As amongst the Bush- 
men we find a state antecedent to government, so may there be one in which it 
shall have b?come extinct." — Social Statics, p. 24. It would scarcely be neces- 
sary to notice these statements of this theory, but if they be received in th« 



THE SUBSTANCE OF THE NATION. 27 

The nation is represented as an historical accident. It 
is the outward circumstance of the life of man upon the 
earth ; it is a phenomenal phase of society, the form which 
society in its manifold nature, in some places and some 
ages may assume. 

But the nation has not been in history an indifferent 
phase of action in certain places, and a transient inci- 
dent of certain ages, which this implies. As there is in the 
nature of man the evidence that he is constituted for the 
nation, so also his normal development has been in it, in 
the historical life of humanity. 

It is not the characteristic of a single epoch, as would 
follow if it were only an incident in the life of the race, but 
it is a power in the continuous development of history. It 
is no ephemeral mode of existence, and instead of being 
the incident, it is the substance of history. 

It is not the circumstance of the existence of man upon 
the earth, but in it there is the determinate power in which 
man controls circumstance, and maintains through events 
the persistent expression of his aim. It is formed in the 
assertion of a dominion over the external world. Its prog- 
ress is as it lifts man above the force of circumstance 
and the subjection to circumstance. Man is weak and de- 
pendent as he is isolated or withdrawn from it. It is 
not the occurrence of some fortuitous scene, to come and 
go, in the unlimited play of events, some single strand 
which is caught and woven in the loom of the years, with 

thought of a people, they must work inevitable disaster, alike to the individual 
and the nation, and their repetition of the mediaeval conception of the state, 
which in that age was always given with a certain sadness and regretful sense 
of loss, involves in this age wider consequences. The characteristics of " the state 
among the Bushmen antecedent to government," are aot further described, and 
there is no positive presentation of facts on which t/» rest these " other stages 
of civilization," which also were rid of government, whose existence the writer 
assumes, except as the " state among the Bushmen," may be also illustrative of 
them. When these assumptions are presented, -with the pretension of a school 
that it always keeps a foothold of facts and is characterized by a scientific exact 
ne38, they may justify some surprise. 



28 THE NATION. 

their ceaseless changes, and then not to appear again, but 
it is the fabric in which events are wrought. 

This representation of the nation apprehends it as only 
an apparent order ; not an end in itself, but incidental to 
the attainment of some other and separate ends ; only a 
scaflPolding for some interior structure, which it is to sup- 
port, or an association for the advancement of the private 
ends of the individual. But in its vocation and the moral 
obhgation which it cannot transfer nor evade, there is the 
condition of an immediate moral being. It has not the indi- 
vidual in himself and his advancement as its separate and 
special end, but in its aim as the universal, it constantly 
elevates the individual above a separate and special end. 
It has a life which may call for the sacrifice of the life of 
the individual in the higher, the universal aim. There is 
a false egoism, which has its root in selfishness, in this 
representation of the subordination of the state to private 
ends, whatever their disguise and whether they be of a 
so-called spiritual, or of a temporal character, and the 
necessary sequence of the principle it asserts is the dis- 
solution of society. 

In this representation it is common to regard the organ- 
ization of government as identical with the nation, and to 
limit it to that conception. Thus the dynasty or the mu- 
nicipality, the tribal, or patrimonial, or imperial power, 
may be regarded as substantially the nation. But it is 
not comprehended in the simple fact of government. 
There is government in the family, and yet the family is 
not the state. There may be the recognition of and the 
subordination to authority, in an association which is or- 
ganized for plunder, as in the brigand's band or on the 
pirate's ship.^ When the nation is apprehended as only 
an external order, the recognition of a certain authority, 
in a certain locality, and by a certain association of men, 

1 " Quae est enim civitas ? Omnisne etiam ferorum et immanium? Omnisn« 
fiigitivorum ac latronum congregata upuna in locum multitude? Certe nega 
bis." — Cicero, De Rep-ublica, bk. 11. eh. 2. 



THE SUBSTANCE OF THE NATION. 29 

then it may indeed be assumed as the transient circum- 
stance in a continually changing condition, but there can 
DC for human society no real stability. 

The nation is represented as a jural society. Its sole 
object is the maintenance of private interests and the pro- 
tection of private rights. Its end is effected in the keep- 
ing of the peace among a certain number of men in a cer- 
tain locality. Its process is a system of police. It is a 
vast constabulary force, which is to prevent disorder within 
certain limits of the earth. The nation is only a judge 
and warden, and that government is best which governs 
least. Thus one's country is a larger bailiwick, whose 
boundaries some convenience of administration has de- 
termined ; the father-land is the circuit of the judge and 
the sheriff. The exponent of national power is the tip- 
stave. To be a citizen, to be the member of a nation, has 
no other significance than a certain relation, in which 
each is held and bound over for the keeping of the peace. 
The only association recognized in the state is a jural re- 
lation, and the nation is only a jural society. 

This conception is obviously imperfect, and while, as 
R. von Mohl says, it is so narrow as scarcely to need crit- 
icism, it is yet constantly recurrent. The state certainly 
has to secure the civil order of society, to repress violence 
and to punish crime ; but this is not its sole nor its whole 
end. Every state, simply to maintain its existence, em- 
braces a wider sphere and exercises larger powers. The 
aim of society, in its most meagre form, could not be ac- 
complished in so contracted a principle. 

This also regards the maintenance of the necessary rela- 
tions of the individual, and private rights and interests, as 
the end of the state. Its law is in necessity, and in the 
relations which conform to this law, but it subsists no 
longer in a real freedom. It is no longer the growth of 
national character and spirit. There is no organic and 



30 THE NATION. 

moral continuity, and its citizenship is no longer a living 
relation. There is no principle in which it can animate 
the spirit of man, and it can awaken no reverence for the 
past nor hope for the future. It cannot inspire the gen- 
erous sacrifice of the present to the future, by which alone 
the life of nations is consort id. There is no place for the 
self-devotion which is the source of public spirit, and in its 
whole scope there is no ground for public rights and public 
duties. 

This also confounds civil and political rights, or rather 
the whole province of political rights is denied, and the 
nation is limited to the definition of the civil organization. 
It is constituted only of persons in private relations, and 
only for their protection in these relations. But this is 
inconsistent with the essential constitution of the political 
people, and there is no principle in which it oan apprehend 
the people as organic, and therefore as invested with po- 
litical power, in the will of the political whole. 

This conception is also destitute of an historical foun da- 
tion, and does not serve to describe any historical nation. 
It is a low and imperfect representation which fails to de- 
fine the life of the people in its organic unity and organized 
relations, and makes no history possible in its own limita- 
tion. There is no ground for an historical unity and 
continuity. The historical course of every nation has 
elements which transcend it. It fails to represent, for 
instance, the life of Greece or Rome, of England or France, 
and eliminates fi:om their history all their spirit and all 
that gives dignity and grandeur to their action. 

This proposition has for its postulate necessarily a false 
conception, both of the origin of society as only an associa- 
tion of men, and of the nature of men as impelled only 
by selfish interests and toward selfish ends ; and when it 
reaches its conclusion, as it merges the nation into the civil 
corporation, it indicates the beginning of a false civilization. 

The highest organization of the civil corporation, and 



THE SUBSTANCE OF THE NATION. 31 

the most perfect jural system, would still not satisfy the 
spirit of a people. It could not attain toward the destina- 
tion of those powers which are immanent in humanity. 
There is in it the apprehension of no moral relationship, 
and in its last analysis it could apprehend its members only 
as plaintiff and defendant. The long result of human so- 
ciety it would represent in the institution of a civil court, 
and the close of history in twelve men sitting in a jury- 
box. Its final achievement it would reduce to a codifica- 
tion of the laws. The better conception of society and of 
the individual perishes, and the largeness in the fore- 
thouo-ht of the statesman, and the heroism in the devotion 
of the soldier have no place in it, but its representative 
is only the civil lawyer. 

The civil corporation presumes the existence of the po- 
litical people, that is, the nation in which it subsists ; and 
it has in itself no element of continuity, nor even of con- 
tinuous action. There is no fact more significant than that 
the life of the Koman citizen had lost all its strength and 
nobleness, when it came to be apprehended under rela- 
tions and distinctions defined only by the civil system. 
There was no longer in Roman citizenship a vital and a 
moral spirit, and the individual discipline which had been 
the secret of her conquest, and her vast organization, per- 
ished. It was in the decadence of Rome, and in the later 
days of the empire, that the thoughts of the greatest of her 
sons turned only to the civil law, to its system and its cod- 
ification. 

It allows no sphere for the maintenance in it of the 
relationships of life. They cannot in their normal concep- 
tion subsist in it, and when the nation is apprehended as 
only a civil corporation, an administration of the police, 
then the family, which is organic and is in itself sacred, 
*s elevated above it, only at last, in its necessary relation 
to it, to be reduced to the same low conception. The 
nation, merely as a society of jural relations, cannot com- 



32 THE NATION. 

prehend the family thus as organic and as sacrevl, ana 
whenever the one has been represented as a civil corpo- 
ration, the other has come to be held as only a civil con- 
tract. 

This proposition has been assumed in the assertion of 
a necessary separation of the moral and the legal, and 
the identity of the nation with the latter. It is correct in 
the assertion of a distinction of the moral and the legal, 
and the former has never in the latter its perfect expres- 
sion nor its comprehension ; but the proposition assumes 
their isolation, so that in the state the conception of the 
one excludes the other. This has its illustration, and has 
obtained in some respects its more recent influence, 
through the aphorism of Kant.^ Kant represented the 
state as deriving its content and its powers from a formal 
law, and defined it as, "the association of men under a 
system of laws.'* He asserted that the moral cannot be 
external, since it requires that duty shall spring from the 
conscience which is within man, and proceed through an 
inner motive, while the order of the state regards only the 
conformance of the external act to the law, and to it there 
is attached also compulsion, the physical force, which be- 
longs to the authority of the state. This was the argument 
for the definition of the state as formal, not organic and 
moral, and for its representation as only an external order. 
It is correct in the assertion that the conscience is within 
man, and that the inner life is beyond the invasion of 
physical force, and over it the state has not, nor has any 
save only God control, but with this it does not follow for 
one moment that the external act must be separated from 
the conscience, nor that the external order has no moral 
substance, nor that the formal law has no moral content 
and no moral end. The physical force, also, which this 
asserts as existent in the state, must, as a right, have a 
higher sanction than this allows, since there is no ground 

1 Kant, Rechtskhre^ sec. 45. 



THE SUBSTANCE OF THE NATION. 33 

on which a number of men are justified in the act itself, in 
compelling one man. The state also acknowledges as 
legally binding without express enactment, a moral rela- 
tion and obligation, and the primary obligations, for in- 
stance, of patriotism, which in no state have been defined 
in its system of laws, and cannot be so defined, are neces- 
sarily assumed and asserted by every state. In this argu- 
ment, also, the laws have necessarily no other content than 
that which is derived from the external relations of life, 
but if the state is apprehended only in these relations, it 
becomes merely an external and formal order, and in the 
institution of these relations as external and formal it 
would fail of their end, since they presume a moral unity 
and obligation. And the legal becomes something poor 
and empty, when it is separated from the moral ; and the 
law, when its invisible sanctions in the conscience are 
withdrawn, becomes only the contrivance of legislators, 
and society only the scheme of politicians. The very 
conception of law as the affirmation of justice, and its uni- 
versal aim, is lost sight of when it is apprehended as 
existent only for the individual, and to subserve his private 
end. It has, indeed, for the individual, no such egoistic 
place. 

This, also, necessarily excludes all consciousness of a 
divine obligation in the nation to execute justice and to 
punish crime, to repress violence and to maintain order. 
The state is merged again into the civil corporation, and in 
the assumption of the isolation of the legal and the moral, 
and the subsequent foundation of the nation in the merely 
legal, society becomes only the form of legists, and its 
action the precedent of a political pharisaism. 

The nation is represented as an economic society. It is 
a temporary organization for the promotion of the physical 
well-being of man ; it exists only for the satisfaction of 
certain physical wants ; it has its ground in the necessities 
which arise in the coexistence of men. 



34 THE NATION. 

This is the merely economic state ; its law is in neces* 
sity ; its relation has a material basis ; its existence is con- 
tingent upon the securance of certain temporary ends. 
The bond by which it is attached, is in production and 
exchange, and its permanence is to provide security for' 
material accumulations. The nation is apprehended only 
as a joint stock concern, a board of trade, an insurance 
shop, or a produce exchange. The continuity in which it 
unites the generations, is the inheritance of their accumu- 
lated capital — contracts and wills. The record of its 
achievement is in tables of commercial profit and loss, and 
the relation of its members is defined by regulations in 
bargain and sale. It exists for the protection of persons 
and property, and is, at the most, only the external and 
temporary form in which some interior and spiritual struc- 
ture is built, but it has in itself no corresponding character, 
and no apprehension of the purpose and spirit of that, and 
no enduring principle nor universal aim. 

It is true that the nation has in its scope the organi- 
zation of the civil order, in the protection of persons and 
property, but this is not comprehensive of it. There is to 
this the same objection which applies to the representation 
of the state as simply the jural society : it is obviously de- 
ficient. It fails to define any historical nation, and there is 
none in its limitation which could find a place in history. 
There is no people which has attained an historical exist- 
ence, but it has necessarily held a moral purpose and aim, 
beyond any material interest, and in the crisis of its history, 
it has been called to sacrifice material interests that the 
nation might live, and has maintained its calling in the re- 
jection of apparent material advantages. 

This proposition fails, also, since it necessarily involves 
the formation of society after a selfish principle, or in self- 
interest. There is not in this a formative social energy. 
There can be no unity, since the principle it assumes is 
the very root of division. It can issue only in disintegra* 



THE SUBSTANCE OF THE NATIOK. 35 

tioii through self-antagonisms, and the result in fact, as it 
is the necessary sequence of the principle, is the dissolu- 
tion of society. 

There is not in this assumption the condition of per- 
manence ; and when the security of material interests has 
become the supreme end, it indicates the decay of the 
state. If it has failed to recognize a principle of righteous- 
ness, that still has not swerved to allow a way for it, nor 
fallen to be passed over in its streets. 

This conception does not correspond to the apprehension 
of the nation, in the consciousness of men. It divests Its 
life of all sacredness, and its authority of all obligation. 
There is no ground left to the people of reverence for its 
ancestors or of hope for its children. There is for justice 
no solemnity. It cannot call forth that devotion from its 
sons, whose measure is the pledge of life and fortune, and 
their sacrifice would be the subversion of the end ascribed 
to it. It has no place for the courage of the soldier, nor 
the wisdom of the statesman, nor even for the love of its 
children, but exists for the promotion of trade, and is the 
copartnership of men in a secular concern. 

But the defect in the limitation of this conception is 
apparent. The nation hp^ elements which are not deter- 
mined in its economy. It is not exhausted in the sched- 
ules of its produce and exchange ; its unity is not in 
material interests ; its history is written in other books 
than the tables of its census ; its capital is other than the 
centre of its trade. 

This proposition has had a various support, and has de- 
termined the position of the most opposite parties, and has 
united — each holding the state in moral indifference — the 
secularist and the ecclesiast. The latter has assumed for 
himself alone the work of righteousness on the earth, to 
result often in indifference to actual righteousness, and the 
former has denied the presence and the power of righteous- 
ness in history. The inference of each has been the being 



36 THE NATION. 

of the nation, as only an association of individuals in an 
external order, for certain temporary ends ; an existence 
subsisting only in the secular, and each, therefore, has re- 
garded its course as profane, and the crises of its existence 
too often have seen their I ;tent or avowed alliance. 

The principles of economy have a common ground and 
application ; the laws of commerce and exchange are a3 
wide as the seas on which their ships sail. They are laws 
w^hich are applied by every nation, but they are not 
immanent in the organism of the nation, nor determined in 
its individual existence. Thus the nation may form a 
treaty of reciprocity in trade, but it csin form none of 
reciprocity in political rights ; for the nation, as an organic 
and moral power, is subsistent in these. There is nothing 
in the principles of political economy which can become the- 
ground of the separate life of the nation. ^ 

This conception, in its premise and conclusion, corre- 
sponds to the preceding; and the characteristic of all is the 
identity of the nation with the civil corporation, and the 
rejection of its organic and moral being. These theories 
become the source not of the constructive energy, but 
involve the elements of the dismemberment of society. 
They can apprehend the nation only as the field of indi- 
vidual ambition, and selfish interests, and private ends. 

1 " Die burgerliche gesellschaft rein als solche, ist eine Eosmopolitin.'* — 
Bothe, TTieologische Ethik, vol. ii. p. 123. 



CHAPTER III. 

THE ORIGIN OF THE NATION AS DEFINED IN THEORIES. 

The conception of the origin of the nation is necessarily 
presumed in the conception of its unity and its substance. 
Tliey alike shape the action of men in the conduct of 
affairs, and there has been in modern history no more 
manifest illustration of the relation between the thought 
and the work of a people. The response has been given 
in various theories, to the inquiry. Whence does the nation, 
that is, the organization of society, derive its being, and its 
unity, and the authority in its government, and its rights, 
and its powers. 

It is not the beginning of the nation, in its historical cir- 
cumstance, which is the object of this inquiry ; and this has 
been the same, in no separate nations. Their inception, 
in their external phases, has been as varied as the infinite 
life of history. The historical beginning may be, for in- 
stance, in the growth of a family, and the accession of 
other families, or in the planting of a colony, or in the 
migration of a race, and so on. But there is in this only 
the incident of their historical inauguration, and we do no^ 
attain to the origin of the nation, nor of its unity, nor the 
authority in its government, nor its rights and powers. 
The characteristic of these various propositions in review 
is their lack of consistence with the necessary conception 
of the nation ; they are mere abstractions, and their worth 
is only in their illustration of tbs necessary conception. 

It is said that the nation has its origin in the development 
of the family : the family is the unit of human society, 



38 THE NATION. 

and of its organic process in the nation ; and in the expli- 
cation of the family the nation is formed. The right in 
which the government of the nation subsists, is then also 
the right of the father, and the people who form the nation 
are related to the government as its children. 

It is true that the family is the unitary form of soci- 
ety, but it is not therefore the only form, nor determin- 
ative of the whole. The nation is not the continuation of 
the family, nor is it the result simply of its extension, nor 
is it in its form necessarily correspondent to it. The 
organism in its perfectness cannot transcend its germ or 
spore, and the family in its widest development is still only 
the family. The nation is not necessarily implanted in the 
family, but it is itself an organism ; it has its seed in itself, 
and the condition of its development is in its own organic 
unity and the conformance to its organic law. 

The rights and powers which belong to the nation also 
transcend those of the family. The authority in each is 
different from the other, and while the latter in its form 
is absolute, and obedience is rendered to it as to an im- 
perative, the former is the determination of the organic 
will as law, and obedience to it is in the conscious obliga- 
tion to law. The rights of the former, also, are private 
rights, and its power is private power as an estate, as it is 
also indeed when power is held as the property and entail, 
of a patrimonial prince or an hereditary aristocracy ; but 
in the nation there are public rights, and its power is 
vested as a public trust. The duties of the family are also 
in implicit obedience to one, who is the father of the house, 
but in the nation there are public duties. 

The right which is the ground of the government of 
the family, cannot become that of the government of the 
n-ation. The government of the family rests in the right 
of the father to govern his child, but this is necessarily 
limited to those who are his children, and cannot justify 
the extension of his authority over those who are not his 



THE ORIGIN OF THE NATION. 39 

children. When it is thus extended over the children of 
another, it conflicts with the unity of the family and its 
authority in its natural head, and wherever, in the organi- 
zation of society, it has been transposed beyond its natural 
limits, it has sought its justification in a civil conception, 
and in some legal fiction, as that of adoption. 

The nation is over the family, and the latter in its rela- 
tion to it is subordinate. The father is responsible to the 
nation for the manner in which he may exercise his 
authority in the family, and the relations of the latter, and 
the obedience of the child, are to be sustained and enforced 
by its law. It prescribes the age when the child may be 
withdrawn from the formal authority of the father, and 
even in earlier years it may take the child from him when 
it deems necessary, and institute a guardianship over it.^ 
The right of the nation, therefore, instead of residing in 
the right of the father, holds the latter in subjection. 

This proposition is often stated thus, that the nation has 
its origin in the association of certain separate families. It 
is derived from the existence of a certain number of fami- 
lies, separated from all others, and connected by marriage 
among themselves. But this does not necessarily trans- 
cend the limits of a tribal relation, and does not attain to 
the nation. It does not correspond to its historical institu- 
tion and course. It is, for instance, descriptive of the ple- 
beian or the patrician organization in Rome ; but neither 
of these was Rome. 

The evidence of history is, that where society has not 
passed beyond the development of the family, there has 
been no national existence. With the long dynasties and 
vast populations in Asia, where society has adhered to the 
patriarchal type, there has been no nation, no citizenship, 

1 " Society must suffer if tne child is allowed to grow up a worthless vaga- 
bond or a criminal, and has a right to intervene both in behalf of itself and of 
the child, in case his parents neglect to train him up in the nurture and admo- 
nition of the Lord, or are training him up to be a thief, a drunkard, a murderer 
ft pest to community." — Brownson, The American Republic, p. 41. 



40 THE NATION. 

and no political freedom. Their life has been character- 
ized by the absence of political spirit. 

There is yet a truth which underlies this conception of 
the origin of the nation; and while the latter does not 
exist in identity with the family, and is not formed simply 
in its continuance, there is still a necessary connection ; 
their origin and end is not diverse. They exist in an 
organic and moral interrelation, and the natioa has its 
fruition in the life of humanity, in the universal family. It 
rests in the unity of humanity in the divine fatherhood ; 
and therefore not with vague and unmeaning phrases, but 
as its end, it looks to the brotherhood of men and the fra 
ternity of the nations, in the order of the world. 

It is said that the nation has its origin in mere might : it 
is founded upon force ; it is the right of the stronger, as 
superior, to control the weaker, as inferior. 

But this involves the immediate contradiction to the being 
of the nation. The nation is constructive of an order in 
law and freedom. There is the subjection of barren force 
to right, and authority in it is wrested from the rude hand 
of power and placed in the hand of justice, and the con- 
quest of civilization is in the manifestation of power no 
longer, as mere force, but in the recognition of a law of 
righteousness. The conception is subversive of rights, for 
these necessarily presume another postulate than mere 
force. 

There is in mere force no element from which progress 
can be evolved, but in the prospect of its prevalence there 
is the awakening of dread, and by it man is not ennobled 
but subdued. There is the rejection of a principle of hu- 
manity. The law of justice is unrecognized, and the pro- 
cedure of justice is leveled beneath its iron tread, and in a 
condition in which no asylum is sacred from its invasion 
the place of equity is usurped by its authority. 

It is so immediate a contradiction to the being of the 



THE ORIGIN OF THE NATION. 41 

nation, that the element of law disappears, and there is 
only the mandate of power, and the relation of a common 
citizenship is lost, and it is transformed into, that of the 
master and the slave. 

The conception, if it were to become actual, would re- 
sult, not in the institution of the order, but in the constant 
disturbance of society. The right of the stouter, the claim 
of the champion, would claim a trial, and as in the lead of 
a herd of buffaloes, it would involve an incessant struggle. 
If then the nation, as also an individual or family or race, 
in any moment be stronger than another, it is at once the 
justification of the conquest and the subjugation of the 
weaker. It is the justification of absolutism, but also of 
anarchy, when that is strong enough to get uppermost. 

This proposition has sought an historical justification, but 
in the empty and superficial notion of history which it as- 
sumes, there has not been in mere physical force the insti- 
tution of the nation. The external circumstance of the 
nation at its beginning, has not infrequently been in war, 
and it has had to pass through a struggle for existence ; but 
it has not therefore been the product of violence, and war 
has been the incident of its beginning, only as war was in 
the assertion of the right. The right, then, has not been 
born of force, but has been asserted and maintained by 
force. If force has been severed from right it has been 
not the inception of the order of society, but its devasta- 
tion, and the progress of civilization has been in the in- 
creasing direction of physical force to a moral end. It has 
not been strong enough to regard the weakest and the 
lowliest with indifference, and in its course the things 
which are not have brought to naught the things which 
are. 

Yet there is also a truth in this conception. It is a pro- 
test against the notion which apprehends justice as abstract, 
and denies the power of righteousness. It is the rejection 
of a spectral idealism, and the recognition of the fact that 



42 THE NATION. 

the right is manifest, and is not the dream of the spirit, 
but moves to the conquest of the world. The right is no 
faint apparition, and no flimsy conceit, but a power. 

It is said that the nation has its origin in some instinct 
or emotion in man : there is some element in his nature in 
the action of which he is impelled toward the nation, 
. and it exists as the product of this impulse. It is the 
result of a faculty in man, and is constructed as the bee 
builds his cell and the beaver his dam. This capacity 
has been variously described as a special faculty, or as 
sympathy or self-interest or fear, or as their common ac- 
tion. It is the psychological notion of the origin of the 
nation. 

But there is in this no cause from which the being of 
the nation can be derived. The nation has an integral 
life, a positive and substantial content, and can have its or- 
igin and foundation in no subjective phase. It is as far 
from the attainment of the instinctive and emotional, as it 
is from the reflective and volitional act of the individual. 

The nation, moreover, cannot have its origin in an 
impulse or emotion, whose action is necessary, since it has 
a moral being, and it exists not in necessity but in free- 
dom. 

There is, furthermore, in the nation, in its unity, its 
rights and its powers, that which cannot be derived from 
the action of an impulse or emotion. There is no power 
in the nature of man which could result in the right to gov- 
ernment which is in a political order and is over men, nor 
in the organization of law and freedom. 

As the self-government of the individual is in the sub-^ 
jection of impulse to the determination of the will, in con- 
formance to a law of right, the principle also obtains m the 
government of the people. The individual, in so far as he 
makes a natural impulse his master and obeys that, is not 
free, and in the yielding to mere impulse there is the deg- 



THE ORIGIN OF THE NATION. 43 

radation of man. It is an animal existence, and the action 
for man is ignoble and unfree. Civilization which is 
formed in the development of the state, is the subjection 
of the impulses and passions of man in a moral order, and 
is the elevation above the rude condition of untamed and 
unrestrained impulse and passion which hold the elements 
of barbarism, and can issue only in violence and anarchy. 

Yet there is in this proposition also a truth, and while 
there is no identity in the spirit in which man is related to 
the state of which he is a citizen, and the instinct with 
which the bee or the bird builds his cell or nest, there is 
yet in the physical order of nature the correspondence to 
the oyier of the state. It is also a protest against the 
merely artificial conception in politics, and illustrates the 
truth that the foundations of the nation are laid in the na- 
ture of man, and it is formed in the realization of his true 
constitution. 

It is said that the nation has its origin in a convention : 
it is founded in a contractual law, — in the social contract. 

The historical genesis of this theory has a separate con- 
sequence, and affords the significant illustration of the 
strength of a legal fiction, of its use, and then also of its 
risk. It has been the premise for the most opposite schemes 
and speculations upon society, and has mustered in its sup- 
port in succeeding periods the most extreme men and 
parties, serving now as the defense of the established 
order, and again as the summons to revolution. It has 
prevailed in countries the most diverse in their political 
spirit and constitution. It fills the political literature of the 
last two centuries, and the association of nearly all their 
great names with it indicates alike the character of the 
age, the source of the strength and the weakness of its 
great thinkers and workers. In Germany it claims the 
names of Grotius, of Puifendorf, of Kant ; in England it 
was with Hobbes the staif of authority, and with Locke 



44 THE NATION. 

the shield of hberty ; but its clearest assertion was in 
France, and its highest influence was obtained through the 
Contrat Social of Rousseau. It became the scholastic tra- 
dition of American legal and political theorists. The phase 
which it took in the French school corresponds more nearly 
with the thought of Jejfferson, while the influence of the 
form given to the theory by Locke, is apparent in the po- 
litical writings of Adams. 

The inception of the theory has been traced by Mr. 
Maine, to an imperfect apprehension of the Roman form 
of contracts, denominated Contracts juris gentium. " It 
was not until the language of the Roman lawyers became 
the language of an age which had lost the key to their 
mode of thought, that a contract of the law of nations came 
to be distinctly looked upon as a contract known to man in 
a state of nature.'' ^ But this is its scholastic and legal der- 
ivation, and it could not have obtained its great historical 
place, had there not been involved with all its error a great 
truth as to the being of society and the foundations of the 
state, which was struggling for expression, and which con- 
fronting precedents in the confusion of the age, took the 
form of a legal fiction. The discussion is mainly of inter- 
est as an historical study. It has a certain dryness as " a 
theory which though nursed into importance by political pas- 
sions, derived all its sap from the speculations of lawyers." ^ 

The theory assumes the existence of man in a pre-social 
condition, which is described as the state of nature. The 
imagination lays the boundaries of this province, and then 
peoples it with its unlimited conceits, as the island of the 
Counselor, in '* The Tempest." From its occupancy by a 
jomt contract, men emerge into the social or political state ; 
the latter is thus constituted as the voluntary association of 
certain individuals who enter it and hold it as the contract- 
ing parties. The proposition presumes a universal appli- 
cation ; the origin, and in a certain form the continuance 

1 Maine's Ancient Law, p. 299. 2 H);,^. 



Jl 



THE ORIGIN OF THE NATION. 46 

of all states that have been in all ages, are referred to a 
social contract. 

The proposition in its assumption is arbitrary, and pro- 
ceeding from a condition which is unreal, in its inductior 
it carries the state necessarily into an abstract and formal 
sphere, — and because it has its inception in an assumption, 
it results necessarily in a political system, and not in the 
nation in its organic being. It is this which has limited its 
recent advocacy to the most barren of political schools, 
although of itself not the most dangerous, — a technical 
school of lawyers. It has assumed the existence of the 
precedent condition, which is called the state of nature. 
There is of this pre-social state no report, but it appears 
upon the chart of lawyers, who hold authentic tidings 
of it, and within it find stable footing. It advances, then, 
through a continuous series of assumptions, each of which 
is introduced to prop the preceding. After the assump- 
tion of this state of nature, there is assumed to exist in it 
one who personates the natural man, a fictitious character, 
costumed with the conceits of the theory. It is assumed 
that there is, antecedent to the existence of society, the rec- 
ognition of some law of society, or of some authority in 
society, and on this exit is made and the passage is bridged 
over from the state of nature to the social, that is, the civil 
and the political state. The principle or the authority here 
consistently assumed is that of a contract or a contract- 
ual law. The validity of a constructive consent for the 
parties who in succession are to be bound by it, and by 
whom it is to be continued, is then also assumed. The 
resultant in the social, that is, the civil or political state, 
is represented as the artificial state whose precedent was 
the natural state, which man has left. The necessary in- 
ference in this antithesis is allowed, and the social state 
is represented as the unnatural, or more strictly, the abnor- 
mal condition of life. 

The theory, in its exposition of the nature of man, contra- 



46 THE NATION. 

diets at its outset the fact which is the postulate of Aris- 
totle, that " man is by nature a political being." He is con- 
stituted for society, and his nature has its development in 
it. There is in his being, the rudiments of the state. The 
fact in the existence of man, which it also contradicts, is 
that he has no existence apart from society. The archaic 
condition is everywhere one of dependence, and there is, 
however dimly apprehended, the recognition of some rela- 
tionships, and obligations are acknowledged and sacrifices 
are made for society. The postulate of the proposition is 
a historical fiction. 

There is moreover no illustration of" the origin of a 
nation in the voluntary agreement of individuals who enter 
it from a condition of previous isolation. There is the con- 
stant record of contracts or alliances, where two or more 
communities or nations are the parties, but these exist 
already as civil or political powers, and enter into obliga- 
tions for a certain object ; but there is no record of a nation 
itself established by the voluntary pact of separate indi- 
viduals. The conception of a contract, or of a contractual 
origin of law, itself appears only at a later stage of civil 
society, and in its more definite form, is the attainment of 
a long and elaborate legal culture. 

The nation being the natural and normal condition of 
existence, the individual, instead of entering it with the 
stipulations of a contract, is born and educated in it. His 
spirit and purpose are shaped in it, and its influence in 
his determination may be traced before he is capable of 
.he voluntary choice or agreement which is the condition 
of a contract. 

The theory fails to substantiate its assumptions, which 
are necessary to it, and leaves them involved in inextri- 
cable contradiction. It assumes that the people form a 
contract, but they are not yet a people, nor even an asso^ 
ciation of men ; it is to ascertain the ground for obedience 
to law, and yet the contract it assumes is the most definite 



THE ORIGIN OF THE NATION. 47 

of laws ; its object is to establish the foundations of the 
Btate, and yet, in its conclusion, it falls short of the con- 
ception of the state. The individuals enter the associa- 
tion, as contractmg parties, but the resultant, by the condi- 
tions of a contract, is private property. That, for instance, 
which one obtains by exchange, or holds subject to contract, 
he owns ; it is his property, and as he acquired it, he also 
may alienate it for a certain equivalent, but the state can- 
not be found in this conception. The theory fails alike as it 
carries into the state the notion of a private contract, and 
as it derives the state from a private contract. The asso- 
ciation of individuals, however numerous, is not the state ; 
and the stipulations of the contract, however wide, have 
not the majesty of law ; the concession of private rigiits, 
however extended, is not the institution of public rights. 
The parties to the contract, at the most, are private persons, 
and it is not possible to arrive therein at the conception of 
public rights and public duties. 

The necessary being and end of the nation, moreover, 
cannot be brought within the scope of a contract. A con- 
tract proceeds from and through a voluntary act, and there- 
fore is in the alternative of the parties, — something which 
may or may not be. But the process of justice, and the 
institution of rights, and the conformance to a moral order 
in which the state is constituted, cannot be thus optional ; 
they must be, and therefore the state is existent as a power, 
and is invested with authority. The contract furthermore 
cannot comprehend the spirit, the allegiance, the obedi- 
ence to law, the apprehension of and the devotion to pub- 
lic ends, which are integral in the state. There is not in 
it even the moral spirit in wliich the civil ends can be 
construed. Beccaria denied the right of capital punish- 
ment, on the ground that, as society is formed in a contract 
between the state and its members, the consent of the 
party to his possible extinction becomes then one of the 
terms of the contract, and it is not to be presumed that it 



48 THE NATION. 

would be accorded. The position is good, says Hegel, 
m the conception of a state founded on a contract, for the 
conception has no place for punishment in the divine or 
in the moral sense. 

The contract cannot become the ground of the unity or 
the continuity of the nation ; — not of the unity, for it is 
the agreement of parties in the exchange of equivalents, 
and each remains a possessor, or as the phrase is, "it 
takes two to make a bargain," and in the result the parties 
remain the several proprietors; — not of the continuity, 
for a contract presumes the positive consent of the parties, 
but the constructive consent of succeeding generations 
evades this, while yet the continuance of the formal con- 
tract is conditioned upon this contingency. 

But finally, the conception does not make valid its own 
claim, and limited to its own definition, it has no founda- 
tion ; the contract is good for nothing as a contract. It 
does not substantiate the agreement of the parties, which is 
the condition of a contract. The contract which is not 
clear as to the identity of the parties, and then also as to 
its extent and character, is a nullity. It could only bring 
contradiction into the ordinary affairs of life. It could not 
be recognized or enforced in any court of law. 

The principle is not the foundation, but the dissolution 
of the organization of society. The contract, if it were 
allowed, would be obligatory only upon those who deliber- 
ately and voluntarily entered as parties into it, and unless 
renewed it would expire w^ith them. It could form only a 
temporary obligation which could be suspended, and only a 
joint concern which could be closed up to go into the hands 
of a receiver. Then any number of individuals could sep- 
arate or withdraw, and there would be no power inherent 
in society to justify its prevention. There is then in gov- 
eiTiment no authority, but only an agency limited to the 
securance of the private interests of the contractors, and in 
society no permanence beyond their formal bond, and na 
nation which lives on although the individual dies. 



THE ORIGIN OF THE NATION. 49 

The falsehood in this proposition becomes apparent when 
it is confronted by the peril of the state. The permanence 
of the whole, and the supremacy of law, is conditional upon 
the option of the individual. It is subject to the unlimited 
play of individual caprice. The state may be rent asunder 
in the w^illfulness and whim of one, and beyond this it has 
no defense in internal disorder or external assault. The 
proposition is the postulate, not of the unity and order, but 
of the dissolution of society. It has been truly said, that 
the social contract should be called rather a theory of an- 
archy than the doctrine of the state .^ 

The truth which the proposition subverts, as it sweeps to 
its perilous close is, that the nation proceeds in the divine 
guidance of the people in history. " And yet there is," 
says Bluntschli, " in this conception, involved in the most 
deceptive and perilous error, a certain truth. In opposi- 
tion to the notion which sees in the state only the neces- 
sary product of nature, it asserts the truth that in its nor- 
mal process the human will can and must act positively 
and determinately upon the form of the state, and in con- 
trast with an empty empiricism it vindicates the reason of 
the state and the right in human freedom." ^ 

1 Bluntschli' s AHgemeinen Statsrecht, vol. i. p. 260. 

2 Ibid. 263. See on some of these theories, Ibid. vol. i. pp. 250, 270. 

Hooker has a statement of the social contract, and the institution of govern- 
ment in it: "Men knew that strifes and troubles would be endless, except they 
gave their common consent, all to be ordered by some whom they should agree 
upon," — "for the manifestation of the right to govern, the assent of them who 
are to be governed seemeth necessary." — Hooker's Works, vol. i. p. 187. But 
this proposition lies upon the page of Hooker in a fragmentar}'- shape, and is the 
contradiction of the profound conception of law as organic and not formal, which 
is the fundamental thought of his great work, and places him among the great 
politicians of his own and of every age. His work is a treatise of laws, as rest- 
ing in the eternal and divine reason. — Dr. Tulloch has justly said, the expression 
of laws " valid in authority both in their substance and direct origin, in their 
conformity to reason and the national will and position. He not onl}'^ opposed a 
special church theory which then sought to dominate in Protestantism, but he 
showed how every such theory must break against the great laws of historical 
induction and national liberty. It was the rights of reason and of free and or- 
derly national development in the face of all preconception of whatever kind, 
that he reallj' vindicated." — Tulloch's PujHtanism, p. 29. There is an impassa" 



50 THE NATION. 

It is said that the nation has its origin in a sovereignty 
inherent in the people ; the people in its own native might 
is supreme ; its power is of itself, and its responsibility is 
to itself; its right has no limitation, and it recognizes no 
authority over it and allows none separate from it. 

This proposition postulates the very object to be ascer- 
tained. It presumes the existence of the people, but obvi- 
ously it is not of the sovereignty of the people to will its 
own existence. In its failure to define the political people, 
whose political action it avers, it is destitute of a founda- 
tion, and there is nothing, in the phrase of Locke, " to 
bottom it on." 

The description of the people, which is commonly as- 
sumed in this theory, presents the immediate contradiction 
to the political people. It represents the people as a col- 
lection of individuals in a certain locality, but there is 
nothing in this to distinguish it from the mob. It is des- 
titute of the consciousness of the unity, and of the order in 
which the political people is formed. 

It is also devoid of the elements of political sovereignty, 
since there is wanting the will of the organic people whose 
affirmation is law, and whose freedom consists in an or- 
ganism determined in law. In its conception any collec- 
tion of men possessing a certain collective force, may assert 
their intention, and their action is to be regarded as law, 
and is obligatory upon all, and may rightly be imposed on 
the whole. Then also any collection of men may sever 
themselves from the existent political organization, and 
interrupt its relations, and rend its whole order in the 
demonstration of their power. 

The proposition allows no conception of a country, since 
in describing power as existent indefinitely in any locality 
it avoids the necessary relation in its physical condition of 
the people to the land. 

ble way from the position of Hooker to the inferences of Laud, or to the conre 
•ponding inferences, in another form, of the ecclesiasts of a recent puritanism 



THE ORIGIN OF THE NATION. 51 

The state moreover is not derived from the sovereignty 
of a mere collection of men, since its origin is not in a re- 
flective act. It is not the result simply of choice and de- 
sign. It would be consistent with this to refer the exist- 
ence of justice on the earth to the formal deliberation and 
conclusion of men. And historically, man does not exist 
apart from the organization of society, that is, the nation, 
and from that antecedent condition determine its being. 
The will of man is certainly a necessary element in it, but 
as it has not its inception in thought, it has not its origin 
in the individual nor in the collective will. 

This proposition merges the nation into the conception 
of a bare sovereignty. It is the institution of a power 
which allows no limitation, and acknowledges no responsi- 
bility beyond itself. Its sole mandate is law, and in this 
alone the whole political order subsists. The merest ca- 
price of the multitude is the only authority. In another 
form it is the foundation of society upon mere might. 
There is in it no recognition of the state as the institu- 
tion of justice. It cannot comprehend the rights of the 
individual. As in the contractual theory, the assumption 
of the absolute sovereignty of the individual, by whose 
private act society was determined, could not arrive at the 
conception of public rights and public duties, so also the 
absolute sovereignty of the mass cannot consist with pri- 
vate rights, or the freedom of the individual. It is the 
assertion of unlimited power, the grasp from which it has 
been the effort of civilization to wrest the supremacy, and 
to substitute in its stead a moral force. It is not the tyr- 
anny of the one, but the tyranny of the multitude ; and 
yet the latter passes indifferently into the former, and in 
the degradation of the individual through the subversion 
of individual freedom the way is open to imperialism ; the 
domination over men in one form succeeds to another. 

The sequence to the assumption of political power which 
this proposition involves, has been always the same in 



62 THE NATION. 

every form. The inevitable result of political atheism has 
been a political absolutism. But the consciousness of the 
divine principle in political power cannot be wholly effaced, 
and there follows the apotheosis of the dominant authority. 
The Roman emperors are worshipped as divine. In the 
rejection of the moral obligation in political power, with 
the overthrow of all freedom, and the degradation of the 
individual, there invariably will come the apotheosis of the 
emperor or the apotheosis of the people. The sovereignty, 
as the freedom of man, neither in the individual nor in 
the people is absolute. It can consist only with the recog- 
nition of a divine relation and the consequent obligation 
to a divine law. The freedom of the people has its postu- 
late only in the organic and moral being of the people, 
and this is the precedent of sovereignty. As the sequence 
to political atheism has been political absolutism, so also it 
is only as it has a divine origin, and is formed in a divine 
relation, that freedom exists. This has had the clearest 
expression in the crises of humanity. The voice of free- 
dom, the mighty voice of nations, has not been " The ruler 
is absolute," " The people is absolute," but it has been 
" God and the people," and it has confessed its deliverer 
in Him. It has not been the shout in the host, but in 
the name of the Lord of hosts. 

The truth which this proposition controverts is, that the 
origin of the nation is not in the will of the individual, nor 
in the will of the whole, but in the higher will without 
which the whole can have no being, and its continuity is 
not in the changing interest of men, but in the vocation 
which in a widening purpose from the fathers to the chil- 
dren joins the generations of men, and its unity is not in 
the concurrent choice of a certain number of men, but in 
the divine purpose in history which brings to one end the 
unnumbered deeds of unnumbered men. 

And yet the truth which underlies this proposition alsc 
comes into clearer light in the higher development of the 



THE ORIGIN OF THE NATION. 63 

nation. The sovereignty of the nation is from God, and 
of the people. The representative of its sovereignty is 
therefore responsible to God and accountable to the peo- 
ple. The power is transmitted through no intermediate 
hands, the people is invested with it, in all its majesty, 
in the nation founded in the law of a moral person and 
derivative from God alone.^ 

1 The people holding their authority from God, hold it not as an inherent 
right but as a trust from Him, and are accountable to Him for it. It is not tbtir 
own. — Brownson, The American Eepublic, p. 127. 



CHAPTER IV. 

THE ORIGIN OF THE NATION. 

The nation has a divine foundation, and has for its ond 
the fulfillment of the divine end in history. It has its is- 
sue in the divine prevision, that is, in the moral nature of 
man. It is not the continuance of the family, nor the 
product of force, nor the working of instinct, nor the re- 
sult of the social compact, nor the creation of the sove- 
reignty of the people ; while the truths which underlie 
these otherwise false assumptions, in the course of prov- 
idence, illustrate in a greater or less degree the rise and 
growth and conservation of the nation.^ 

The origin and foundation of the nation has, in certain 
aspects, its illustration in its analogy with the family. The 
family is a divine institution, and so also is the nation ; the 
family is the natural condition, and so also is the nation, 
and as natural it is not of human construction although a 
human development, its constituent elements are implanted 
in the nature of man, and as that nature is unfolded in the 
realization of the divine idea, there is the development 
of the state. The family also is rude and imperfect in 
its form in the early period of the race, and it slowly de- 
velops into the true and the normal, that is, the mono- 
gamic form; thus also the nation slowly develops into the 
more perfect type. 

1 I assume in this argument, from the outset, the being of God and His con- 
nection with the world, and the origin and derivation of the personality of man 
from Him, that "in Him we live and move and have our being," — subjects 
which belong immediately to another province of thought; the statement how-- 
ever may be scarcely necessary, since the work would not perhaps have detained 
»o long any reader who may deny these propositions. 



THE ORIGIN OF THE NATION. 65 

Tne nation exists as an organic and moral being ; its 
existence is a fact, and the apprehension of its existence 
in its beginning, is in the conscious life of man. There is 
therefore, outside of this consciousness, evidence which is 
only indicative of its origin, as of the origin of the individ- 
ual and of the moral life of the individual.^ 

The evidence of the origin of the nation is in its neces- 
sary nature. — The nation is an organic unity; it is not 
an artificial fabric nor an abstract system, but it has a life 
which is definite and disparate, and has a development ; 
therefore it has not its origin in the individual nor the 
collective will of man, but must proceed from a power 
which can determine the origin of organic being. — The 
nation is an organic whole ; but the whole, in which there 
is the conception of the parts, cannot be determined by the 
parts, since there must be the predetermination of the 
whole to which the parts belong ; but the whole cannot de- 
termine itself, and must therefore proceed from a power 
beyond itself. 

The evidence of the origin of the nation is also in its 
being as a moral person. There is and can be for person- 
ality, as it transcends physical nature, only a divine origin, 
and its realization is in a divine relation. The subsistence 
of the human personality is in the divine personality, and 
its realization is in its divine relations, and as with the 
individual personality, so also with the moral personality 
of the nation, — its origin and its consistence can be only 
in God. 

The origin of the nation has its illustration in the various 
aspects in which the nation in its necessary conception may 

1 Plutarch says, in a citation by Haller, " In my judgment, a city could be 
more easily built without ground, than a state could be founded or exist without 
'aith in God." 

Cicero says, with a singular and reverent beauty of language, " Nihil est ill! 
orincipi Deo, qui omnem mundum regit, quod quidem in terris fiat, acceptiua 
quam, concilia coetusque hominum jure sociati quae civitates appellantur." Somn, 
ScipioniSy ch. iii. 



66 THE NATION. 

be regarded. Thus the personality of the nation is in- 
dicative of its divine origin. The necessary elements of 
personality are freedom and justice, and wisdom and cour- 
age, and the like, but these are not physical powers, and as 
moral, they are in their origin above the sequence of phys- 
ical nature. Thus the freedom, which is the substance of 
the nation, is not the mere creation of law, and it is no more 
in the power of preachers and assemblies than of priestly 
and imperial hands to bestow it ; it is of no man or collec- 
tion of men to confer it as a boon, it is a gift which is not in 
the power of earth. Thus also the justice which is incor- 
porated in the state is higher than the enactment of the 
law, and more than the impulses of the people ; it is pre' 
sumed to be the content of the law, and controls the im- 
pulses of the people. It is not the device of legislators, 
and as it exists in the nation, there is manifest its divine 
origin. The illustration may be traced further in all the 
necessary moral elements of the nation, as wisdom and 
courage. 

The powers with which the nation is invested, are also 
indicative of its origin. It is clothed with an authority, 
and has a majesty which no power of earth may assume. 
The affirmation of its will is law, but apart from it, the 
will of no man and no collection of men, is law for another. 
The right of government is its right, but apart from it no 
man and no collection of men have the right to govern 
another, and it belongs to the nation only as it is of di- 
vine right. There is no human ground on which it can 
rest. They who are intrusted with it hold it as the 
representatives of the nation, and as the ministers of the 
divine purpose in the nation. The President and the 
Congress, as the Crown and the Parliament, rule by the 
grace of God. 

The elements which are manifest in the government of 
the nation, in its moral being, can have only a divine 
ground. The power, which is in the people forming the 



THE ORIGIN OF THE NATION. 67 

nation, is over the people, and while the individual acts in 
the government of the nation, it is over the individual and 
he is subject to it, and this is a power which is and can be 
in the nation only as it is a moral person, and is deriva- 
tive from God. This alone in government, is the condi- 
tion also of the reconciliation of law and freedom.^ The 
character of the authority of the nation also indicates its 
origin. It has authority, and is invested with power in 
the maintenance of a moral order on the earth. But the 
right thus to maintain authority over men, belongs in 
itself to no man and no collection of men, and is existent 
in the nation only as it has a divine genesis. 

There is evidence, also, of the divine origin of- the nation, 
in the historical facts which bring out the consciousness of 
the people. Its expression may be traced in the greater 
historical nations, and in their greater ages, the crowning 
centuries of their civilization. It appears in the symbols 
of all their power, and is reflected in their laws and litera- 
ture and art. In Judaea it was the central principle of 
national existence, and was held through all the changes 
of its institutions as a law of life, which through the vi- 
cissitudes of its course exaltation could not bring into for- 
getfulness, nor humiliation into denial. In Greece it was 
shaped in the beginning of its history in all its traditions, 
\nd is the last word of its philosophy ; it was joined with 

jie sacredness of the family ; it united in one aim its he- 
roes and its poets ; it was wrought in its architecture, and 
in the faultless lines of the sculpture of its temples ; it gave 
the type of victory to its art. In Rome the very religion 

vas the witness to the sacredness of the family and the 
state, and the divine obligations in the relations of a father 
and a citizen. This moulded all her institutions. The 
recognition in these nations of a divine origin was also 

1 " Government like man himself participates of the divine being, and de- 
rived from God through the people, it at the same time participates of human 
reason and will, thus reconciling authority with freedom, stability with prog- 
■688." — Brownson. The American Republic, p. 126. 



68 THE NATION. 

clearest in the ages of their strength. It was not in pe- 
riods characterized by superstition, by prostration and ab- 
ject fear, when the powers of man were dwarfed by the 
impending vastness of nature, before he had discovered 
the harmony in the wide sweep of her courses, and the 
uniformity in her cycles, and the imagination was bewil- 
dered by an apparent discord, but it was in the manhood 
of the people, when there was the highest self-respect and 
self-assertion, in periods whose colossal monuments attest 
the triumph over physical nature, w^hose noble monuments 
attest the higher triumph over foes in the spiritual nature. 
It was not in what are called the pre'-historic ages ; in 
these nations there is the constructive course of history. 
It was held in no individual conception, but the very 
names Roma and Athene were the names of divinities as 
well as nations. There was for each in its name a twofold 
significance, and it denoted not only a political organiza- 
tion, but was the sign of a divinity in whom it was con- 
ceived that the people stood. 

This spirit in the most varying forms may be traced in 
every historical nation. In the unity and continuity of 
the nation, there has been the consciousness of the divine 
guidance in history. It has united the generations, and 
the nation in its battles has drawn its inspiration from no 
lower faith. The great events in its history become the 
witness to the divine presence, and in the crisis through 
which it passes there is manifest a divine judgment, con- 
suming the evil which was destroying it, and gaining for it 
a divine deliverance from the evil. Therefore in Judaea all 
the great testimonies in its national history, through the 
procession of its centuries, were repeated, of Him that en- 
dureth forever. 

The conscience of man also gives the evidence of the 
origin of the nation. The moral spirit of the people recog- 
nizes the life of the nation as sacred. It is apprehended 
as a life which cannot be trifled with, nor weighed lightly 



THE OKIGIN OF THE NATION. 59 

nor judged indifferently. Its inviolability is affirmed, and 
the obligation of its members to it. And as there is in the 
conscience the witness to a divine relationship, if the na- 
tion had merely an external or a physical being, there 
would be no ground in which the conscience could ac- 
knowledge a relation and obligation to it ; there would be 
only the individual obligation which one may hold to an- 
other. The conscience testifies also to a judgment as 
coming upon the nation, because formed in a relation in- 
volving an immediate and a divine obligation. ^ There is 
no thought which has had a more intense expression as 
reflected in literature and art. In Rome and Greece as 
they recognized in the disaster of the individual a moral 
judgment, it was still more apparent that the wider disaster 
that came upon the nation could not be divested of a moral 
condition. 

If the divine origin and foundation of the nation is de- 
nied, the authority of its government is resolved into mere 
force. The power in the nation, as self-subsi stent, is neces- 
sarily absolute*. It may take the form of the absolutism of 
the individual or of the people, but its principle and result 
are the same. In a popular absolutism there may be a 
more utter degradation of humanity and destruction of 
personality, until all that gives a moral elevation to the life 
of men and of nations shall expire, and there remains only 
a level sweep as in bleak and desolated fields. There is, it 
is said, in the reign of the despot, still one that is free, but 
here there is freedom neither for the ruler nor for the peo- 
ple. The ruler who recognizes and follows only the popular 
voice and the popular opinion, becomes himself a slave. 
And he only is truly a ruler and truly free, who recognizes 

1 Mr. Brownson says of a recent political school, " it has rejected the divine 
origin and ground of government, and excluded God from the state. They have 
not only separated the state from the church as an external corporation, but from 
God as its internal Lawgiver, and by so doing have deprived the state of her sa- 
:redness, inviolability, and hold upon the conscience." — The, American Republic ^ 

122. 



60 THE NATION. 

in tlie sovereignty of the nation the divine source of its 
unity and power, and whose action in it is therefore in im- 
mediate responsibility to God. If there is for the nation 
no divine origin and ground, and the ruler is to listen 
only to the voice of a people in itself supreme, and sepa- 
rate from God, then in that awfal absolutism his strength 
is broken, and his power is resolved in those living atoms. 
The ruler is silent in the popular clamor, as he is swayed 
by the agitation of the crowd, and is blind as he is hurried 
by the popular impulse and passion. But the nation, when 
it is conceived as separate from God, can have no realiza- 
tion, for in that separation the ground of ^11 unity and con- 
tinuity is lost, and there is no more a people.^ 

1 Bluntschli cites the language of President Washington — the first inaugu- 
ral of the first President — as among the strongest assertions of this principle in 
modern political literature. — Allgemeinen Statsrecht, vol. i. p. 253. 

While it is denied by popular schools, and avoided by ecclesiasts and pro- 
nounced enigmatic by newspapers, there has been no age in which it has been 
more clearly recognized in the thought of statesmen. Napoleon III. said at 
Rouen, June, 1868, " We cannot separate our love of country from our love of 
God." 

" The human authority in the state can never again be confounded with the 
divine authority (the theocracy), but it must necessarily be founded on the divine 
•athority." — Stahl's Phihsqphie des Rechts, vol. ii. sec. ii. p. 184. 



CHAPTER V. 

THE PEOPLE AND THE LAND. 

The people and the land form the natural elements of 
the nation, in its physical unity and circumstance ; they 
exist in a necessary inter-relation. 

The people in its organic unity, constitutes the nation. 
It is not a sum or an aggregate of men, a chance collec- 
tion accumulated as an heap of fragmentary atoms ; it is 
not a mob, but a people ; not a vulgus but a populus. It 
is not a party nor a sect, nor a mere association of parties 
and sects, nor a combination of separate corporate interests, 
nor of individuals in the partnership of their private inter- 
ests, and there is in none of these the consciousness of the 
unity and of the order vrhich belong to a nation. With 
the mob, a detached and unformed mass of isolated indi- 
viduals, it has nothing to do, and they can have nothing to 
do with it.i 

The people is not determinate in any enumeration of 
individuals. It is the people, not the population, which 
forms the nation. It is not ascertained in any arithmetical 
notation, and the political order has not this nominal basis. 
It is a mechanical conception which assumes a certain nor- 
\-nal number as its true condition. Rousseau estimated the 
normal number for the people at ten thousand, and at peri- 

1 French and German publicists, — the former constantly and the latter mamly, 
-use these terms, the people and the nation, in this significance. The organic 
people in its physical condition, as the natural element of the state is called the 
people (Peuple, naturvolk), in its political condition it is called the nation (Na- 
tion, statsvolk). But the terms in German political literature are wide away 
from any other. Bluntschli adopted the above distinction in his earlier writings, 
while in his later, against the common use, he has followed the strict derivation 
>/the words. 



62 THE NATION. 

odic intervals It was to be changed to conform to this cen- 
sus, but it has no more an arbitrary ground in the num- 
bers of statistics than in the formulas of lawyers. It may 
change with successive generations, and in the prosperity 
and the adversity of its years. It may exist in " numbers 
as the stars for multitude," or In only a remnant who keep 
its calling and guard its ancient faith, and endure through 
captivities, and at last triumph over every conquest. The 
national type is not obliterated in the vicissitudes of events, 
nor overborne by the migrations of races, and does net 
perish, although the individual die. 

The people in its wholeness constitutes the nation, and 
it is to comprehend in its political aim the purpose, and in 
its end to reahze the destination of the people as an whole. 
It is not of the one, nor of the many, but of the people. 
There is no individual, as Louis XIV., who can assume to 
be the state, and no hereditary class, and rio party or sec- 
tion can say, it is in us alone. There Is no sect and no 
faction that can claim it as an exclusive possession. The 
spirit of a party, or a class or a sect in its isolation, subor- 
dinates the state to a special or a private end. Thus when 
he who comprehends only a party or a class or a sect, — a 
mere fragment, comes to work upon the whole, not com- 
prehending in his purpose the people as an whole, but only 
the parts and nothing beyond, his work is that of inevitable 
weakness and corruption. 

The people in its normal and moral relations constitutes 
the nation. There is no arbitrary principle in which the 
people can define its existence, as if society had an indi- 
vidual or artificial basis. And it is not simply the physical 
condition which conforms to a tribal law. It cannot make 
a physical condition the principle of its being. ^ There is 

1 " America, though the best representative of the social and political gains of 
the eighteenth century, was not the parent of the idea, in modem civilization, 
that man is a constituent member of the state of his birth irrespective of hii 
ancestry. It was become the public law of Christendom. Had America done 
«88, she would have been not the leader but the laggard of nations." — Ban- 



THE PEOPLE AND THE LAND. 63 

not among its powers any by which it may elect those who 
shall be in it, but as the normal and moral condition men 
are born and live and act in it. It is not to restrict itself 
to those who may be rich or learned. There is no human 
imperfectness that can be made the ground of exclusion 
from it, and no human greatness that can justify an exalta- 
tion over it. The isolation from it can result only through 
crime, and this is in the law that crime is in its nature the 
severance of the relations of a moral order. 

The people in its conscious unity, embodies its aim in 
the nation. Then it apprehends its object in it, and it is 
set before it in its moral order as the aim of all. It is then 
reflected in the political spirit of the people, and moulds its 
character. There is in a mere mass or aggregate, a frag- 
mentary collection of individuals or parties, no ground in 
which the unity, apparent in political spirit and political 
character, can subsist. 

The people is to work out its own political conception 
in the nation, after the type of its own individuality. The 
external circumstance, the limitations and conditions in 
which it is to act, are as varied as in the development of 
the individual type in nature, while its life which runs 
through human cycles, has a wider range than in the 
sequence of physical nature. The forms through which 
its spirit is to work, are more manifold than those written 
in nature's book of infinite secrecy. The life of history is 
the more opulent in its types ; and the forms of the bud 
*.nd the tree in limitless forests, are not so individual or so 
diverse as those wrought in the spirit of the people in 
history. It is to work oat its own purpose in a moral 
world, and in it alone it has the satisfaction of the spirit. 
It can no more conceive the desire to be another people, 
than the individual can conceive the desire to be another 

croft's History^ vol ix. p. 449. " Der zustand der Barberei besteht darin dass 
eine menge ein Volk ist ohne zugleich ein Staat zu sein." — Hegel,^in ^o«e- 
Icram Leben, p. 244. 



64 THE NATION. 

than himself, — that is, to lose his own identity. The spirit 
of the people is thus reflected in, as it is formed in and 
through, the individual and the generation, while its perfect 
type is in no single individual and no separate generation, 
but in the work of the people in its continuity. 

The people alone in the nation, constitutes in its inte- 
gral and moral life the political order. It belongs to none 
separate from it to prescribe its political course. The peo- 
ple can acknowledge no control beyond its own organic law 
save only that of God, and the law of its being as a moral 
person presumes that, as its freedom subsists in that. The 
power belongs of itself to no individual and no family and 
no class, separate from the nation, as there is also no indi- 
vidual and no family and no class belonging to the nation 
that is exempt from its authority.^ 

The people, in the nation in its moral being, alone has 
the right of government. It is in the nation only, of di- 
vine right. Its power is from God and of the people. 
Its authority is therefore in the name of God and the peo- 
ple, and the responsibility of those who bear its authority 
is to God and the people. The government therefore can 
claim identity with no special and divine majesty, and can 
assume no special and divine appointment. It is only as 
representative of the nation that it is clothed with author- 

The right of government is in the will of the people, 
while it is only in its being in the nation, as a moral per- 
son, that the will of the people subsists. Its authority 
apart from this, has no foundation, and can refer for its 
postulate only to a fiction ; it can be held then only in an 
arbitrary assumption, and defined only in an abstract and 
vacant conception. The being of the nation as a moral 

1 " This authority is not ' the governed,' from whose ' consent ' it is so often 
in a false sense declared 'every government derives its just powers,' but a po- 
etical people, having the power as sovereign to govern every natural person 
within a certain territory without reference to his consent." — Mr. Kurd's articl* 
on *' Reconstruction," American Law Review, January, 1867. 



THE PEOPLE AND THE LAND. 65 

person. Is alone the positive and substantial ground, apart 
from which the will of the people is only formal, and its 
freedom only the empty sphere of outward circumstance. 
The will of the people in the nation thus is not compre- 
hended simply in its collective act, nor in its momentary 
act, and these may not always embody the moral aim, nor 
represent the continuous purpose of the people. It obtains 
a clearer expression in the exclusion of the caprice, the 
whim and willfulness of men, and in the latter there is 
confusion and not order, the creation of chaos and not the 
state. The assumption of the caprice of men as the con- 
dition of power subverts government, and resolves the 
state into its atomy. 

The will of the people in the being of the nation as a 
moral person, is the organic political power. It is the only 
unbroken succession. The ruler who is over and separate 
from the people, is he whose right is disputed, whose au- 
thority is transient, whose succession is subject to accident. 
The will of the people in its succession in the nation, is not 
limited to the individual or to the generation, but it is 
transmitted through the individual and the generations of 
men. 

The people forming the nation exists in its physical 
unity and circumstance, in a necessary relation to the 
land. The land is the outward sphere of the organization 
of the pohtical people. The people and the land thus, 
in common language, become a synonym. Greece is a 
name which represents a certain definite geographical limit, 
and again the complex political life of a people. 

The possession of the land by the people is the condition 
of its historical life. The land is the field of its work in 
history. Nomads may form a horde, but not a state. The 
historical work of the people has an immediate relation to 
the land in which its fortunes are unfolded. 

The right to the land is in the people, and the land is 



66 THE NATION. 

given to the people in the fulfillment of a moral order on 
the earth. It is the possession of the political people. 
Thus it can regard it only as a robbery, when it is de- 
prived of any part of the domain given to it and associated 
with it in its history. The crime is the same when it is 
undertaken by the treachery of a faction from within, or 
by marauders from without, but in the complicity of evil 
in the former, the guilt is enhanced and it becomes the 
greater crime of history. 

The people has in its development, the definite deter- 
mination of the national domain. The description of its 
boundaries is to indicate its political organization and to 
conform to its historical destination. 

The exact designation of its boundaries is also neces- 
sary in its political administration, for the maintenance of 
its authority and the enforcement of its laws, and the insti- 
tution of its order, and without it there would be a source 
of constant confusion. 

The boundaries of the nation are laid in nature and in 
the historical course of the people. This law is universal, 
and the nations which have violated it, again have been 
compelled to acknowledge it. Italy has never passed her 
boundaries so clearly defined in nature and in history, 
but she has been driven back again with loss ; and Ger- 
many in its aggressions has overstepped these limits, only 
after disaster to withdraw again. The law has its illus- 
tration with every people. Its boundaries are not as the 
artificial lines which trace within the nation the occupation 
and possession of private property. 

There is in nature and in history the evidence, that 
God has appointed the boundaries of nations. They are 
to be held in the faith that the land is appointed for the 
people, and the right to it is in its moral order and its his- 
torical vocation. In this faith the people will assert them 
reverently and carefully, will guard them steadily and well, 
The integral unity of the land will be maintained against 



THE PEOPLE AND THE LAND. 67 

all alieriation and diyision. The bounds of the nation 
which are written in the courses of the mountains and the 
lines of the oceans, are written also upon the hearts of its 
children. In their natural distinction these boundaries 
may be mountains or oceans and seas, and sometimes also 
rivers and valleys ; but rivers and valleys, which are the 
wide highways of a nation, may become bonds of union 
rather than of separation, and in the associations of the 
people, may aid to forge it together. In the words of 
President Lincoln, it was after the victories of General 
Grant and Admiral Farragut, that the Mississippi ran " un- 
vexed to the sea." The boundaries in nature become, 
also, lines of defense, and in the strength with which they 
are held, form a guaranty for the peace of the people. 

It may be only gradually that the people enter and oc- 
cupy the land which is open before it, and is necessary to 
its manifest historical vocation. The boundaries thus may 
be modified in its history, but it can allow no change to 
weaken it in the centre of its power, or to impair the inte- 
gral unity of its territory, and no change which will en- 
croach upon the historical domain, or subvert the integral 
unity of another nation. The change which would have 
this result would imperil the whole, and would necessarily 
fail of permanence. 

As the land is the possession of the people it cannot be 
held as the patrimony of a prince, or the monopoly of a 
class. The land belongs to the people constituted as a na- 
tion, and the right to it is in its moral order. The exclu- 
sive possession and entail of the whole domain by a few 
may prevent this object and subvert the moral order, as it 
destroys, for instance, the life of the family. In England 
here are those which are called great families, but as its 
homes are swept away the family life of the people is 
destroyed. One half of tne land is owned by one hun- 
dred and fifty proprietors, ani the whole number of pro- 
prietors is reduced to thirty thousand, while the majority 



68 THE NATION. 

of the people subsist on wages. " The yeomanry," saya 
Mr. Disraeb*, " has vanished from the face of the land, 
while the tendency of business has been to introduce a 
condition to consist only of wealth and toil." 

There is a common conception in which the land is so re- 
garded, as to make simply a geographical position the origin 
and condition of the existence of the nation. Mr. Maine 
attempts to establish the state upon the fact of local conti- 
guity.i But in an existence in a local contiguity there is 
not the origin nor the foundation of the political life of 
men. While the fact of residence and coexistence is 
necessary in the historical course of the- nation, it does not 
bear in itself its germ, nor is it the source of its integral 
unity. It is not the circumstance of neighborhood, but 
the consciousness of relations to one's neighbor that is 
indicative of the origin of the nation. The unity of the 
nation is not in the existence of man in a certain contigu- 
ity, but in a conscious purpose and a relation which is 
necessary to the destination of each and of the whole ; its 
condition is not a merely physical relation, but a mora, 
relation ; and it has not merely the existence of the in- 
dividual for an end, but the whole for an end. There are 
thus, for instance, vast contiguous populations which have 
existed for centuries on the plains of Asia and Africa, and 
in the most diverse geographical positions, and yet they 
have not formed a state. There are populations by the 
Rhine strictly more contiguous to the French, in their 
bulk, than to the Germans, but they would go to battle 
rather than be wrested from the unity of the German 
nation. This definition of the origin of the nation in local 
contiguity, has also no historical justification. There was 
a people dwelling by the banks of the Tiber before the 
beginning of that national development which was to de- 
termine so widely the world's history, but they were not 
Rome. There is a population in Judaea, but the stones 

1 Maine's Ancient Law, p. 128. 



THE PEOPLE AND THE LAND. 69 

of its temple are broken, and it is not there that we seek 
the continuity of Israel. 

The relation of the people and the land is consistent 
only with the existence of the nation in its necessary con- 
ception. The proposition which represents the people as a 
mere collection, an aggregate of men, and the proposition 
which defines the origin of the nation in a contract, cannot 
embrace this conception of a country, and when the nation 
is regarded as only the creation of a formal law, it no longer 
comprehends the necessary relation of the people and the 
land. 

The influence, in this interrelation, which the land has 
upon the people is apparent, but there is a tendency in a 
certain school to ascribe to the land a determinative influ- 
ence, and to refer the constructive and formative power of 
the people to external circumstance and physical condition 
— the climate, soil, geology, minerals, fishes, etc. This 
had a fair consideration in Montesquieu, but there is a 
school which comprehends nothing beyond. The denial 
of the reality of human freedom, the assertion of a bare 
necessitarianism, has its consistent sequence, in the refer- 
ence to physical influences of a controlling power, in what 
it yet calls history. With the denial of human freedom it 
passes immediately to the study and computation of cli- 
matic conditions, the soil, the climate, the agricultural prod- 
ucts, and the like. The writings of Mr. Buckle illustrate 
this. But in the existence of the nation, which is the sub- 
stance of civilization, there is a power higher than the 
necessary process of the physical world. It exists in the 
order of the moral world. This cannot be determined by 
physical elements. The history of the world cannot be 
deduced from its geography. In the political course of 
the nation the land is a necessary element, but it is not the 
creative nor the controlling element. The future of the 
nation will not be concluded by its relative nearness to the 
equator. The nation exists historically in the reaHzation of 



70 THE NATION. 

the fteedom of man, and his consequent dominion over 
nature. Mr. Buckle, when he stood in Judaea, avowed that 
his only interest was in the agriculture of the country ; but 
the soil is the same upon which a people lived who stood in 
the continuity of a nation, which long captivity in strange 
lands and under strange skies did not destroy, whose unity 
was lost in the grandeur of no imperialism, and whose lines 
of kings and prophets looked to the coming of One in whom 
was the hope of humanity ; but the physical process of na- 
ture does not renew that life. The mountains of Attica 
are the same upon which the Parthenon was built, and 
their quarries the same which furnished the marble for the 
sculpture of Athene, and the windy plains are the same 
upon which an army was mustered at Marathon, and the 
sea is the same whose waves were parted by their ships at 
Salamis, but the conflict which in its moral interest made 
these names immortal, has closed.^ 

Since the land is necessary to the historical development 
of the people in the continuity of the nation, the nation has 
supreme authority over it. It is in its integral character 
the domain of the people. Within its limits, therefore, the 
people can allow no possession exempt from its control, and 
no individual beyond its law. 

The people and the land exist, in their interrelation, in 
the historical realization of the nation as a moral order. 
The land becomes associated with the spirit and the des- 
tination of the people. Since it is the external sphere and 
condition of the life of the people in its moral order, it is 
holy ; and since it belongs to the people in its continuity, 
it is inalienable. There is thus attached to the land a sa- 
credness which is derivative from the moral being of the 
nation, and it is held as inviolate. 

The land in its integral unity is thus a divine gift, a 

1 Comte has a more exact statement of the influence of the physical world 
upon man: "The world," he says, "furnishes the materials, and man detet 
mines the form." . . . . " Man is not a result of the world, and yet he de- 
fends upon it.'' — Catechisme Positiviste, pp. 37, 42. 



THE PEOPLE AND THE LAND. 71 

habitation of the people for all generations. It shares in 
the sacredness of the life of the nation, historical associa- 
tions grow up around it, and blended with their traditions 
it passes sacredly from the fathers to the children, and 
constitutes in its wide domain the heritage and the home- 
stead of the people.^ 

1 " The land is the essential condition of the normal and moral development 
of the state, and therefore it is absolutely holy and inalienable. It is here that 
the real moral spirit of the love of the father-land rests : originally it is a love of 
one's native land, and always retains this natural element, but in its complete- 
ness it is wholly interpenetrated with this consciousness of a moral relation. 
Therefore the true love of the father-land exists only when a people has already 
attained to the life of the nation. The merely economic society has nothing oi 
this." — Rothe's Theologische Eihik^ vol. ii. p. 123. 



CHAPTER VI. 

THE NATION THE INSTITUTION OF RIGHTS. 

The nation is a moral person. This prescribes the 
province of rights and the province of freedom. The 
ground of these is in no formal system of laws, and no 
abstract system of thought. On this ground alone, their 
provinces are removed from the arbitrary limitations of for- 
mulas and abstractions. 

Personality has its condition and its realization in free- 
dom. Personality is constituted in self-determination ; one 
vrhose action is self-determined is a person.^ 

The human personality subsists in the divine personality ; 
as it is realized in the moral life, it is derivative from God, 
and has its fulfillment in God. It comes not in entire for- 
getfulness ; whether it looks within or without, it gazes into 
no abysmal depths. It is not attained through negations ; 
its necessary being is not ascertained in a law of thought, 
as in the formula of Spinoza, nor by a rule of subtraction, 
as in the resultant of Comte. It does not recede into 
nothingness, it does not pass into vacancy. In its begin- 
ning it is formed in relationships, and in its development it 
is not severed from them, but there is the faller expres- 
sion of them. These relations are not the result of the 
reflection, nor of the volition of man, and man is not 
their centre. In the realization of these relations man 
is always brought nearer to Him in whom they have their 
consistence, and in whom is the perfect unity. 

The central attribute of personality is the will. The will 
in its freedom is defined in no formal or empty notion ; it 

1 " A baing endowed with self -consciousness, reason, and freedom, is cal' ed a 
oerson, or has personality." — Ahren's Naturrecht, p. 83. 



THE NATION THE INSTITUTION OF EIGHTS. 73 

is the self-determination of a person, and that alone is 
free. The determination, in the realization of personality, 
acting in freedom, is in the fulfillment of law, but the 
law thus is necessarily not abstract nor formal ; it is not 
external, it is a law implied in the being and the realiza- 
tion of personality, and the fulfillment of which is the end 
of its being ; it is in its highest conception the will of God. 

The mere formal notion of the will and of its freedom, 
which separates it from its substance in personality and 
empties it of all content, could not form the principle of 
rights. It could produce a scheme concerning rights, but 
not the realization of rights ; it could result in a system, 
but not in the nation. 

Rights belong to man, since in his nature he is consti- 
tuted as a person. Personality, since it has its origin in 
God, has an infinite sacredness. This is the ground of the 
feacredness of the rights of man. The individual personal- 
ity can therefore be apprehended rightly only in this con- 
ception, — the life of each must be held sacred, his worth 
must be allowed, his dignity must be regarded, his freedom 
must have in the nation its maintenance and its sphere. 

It is only in his personaHty, in his moral being and 
freedom, that man has rights beyond the other animals. 
In the necessary sequence of physical nature there is no 
ground for rights. It is because man exists also in a moral 
world, which is in freedom, that he has rights. 

The realization of personality is manifested in the am- 
pler institution of rights. For rights in the nation are the 
asserting and the positing of personality, in the external 
sphere, through its self-determination which is its freedom. 
They are the process in which personality affirms itself 
and attains recognition in the nation. Thus also, reverse- 
.y, the decay and loss or abandonment of rights is con- 
nected with a low and a false conception of man, and 
presumes always the degradation of personality. 

Rights belong to man, as man is made in the image 
«f God ; they are his by nature ; they belong to him in 



74 THE NATION. 

his onVinal constitution. Thus the condition of their ex- 

o 

istence, as of their sacredness, is in the nature of man, as 
it is in the divine image. 

Eights have their foundation in the nature of man. 

Personahty manifests itself in the realization of rights ; 
all rights are of a person. 

Rights express and define the relation of a person in 
the nation, to the nation, and to other persons. 

The fundamental law of rights is, — Be a person, and 
respect others as persons. ^ 

The nation is the institution of rights. The primary 
distinction of rights is of Natural and of Positive Rights. 
Rights are natural, as laid in the nature of man ; rights 
are positive as defined in the nation. Rights are natural 
as immanent in the nature of man ; rights are positive 
as emanent in the nation. 

Rights are natural^ as founded in human nature. They 
are inherent ; they are written in the law and the consti- 
tution of the being of man. These rights are variously 
denominated in the various representations of their con- 
tent and form. 

Blackstone calls them absolute rights. But this is inex- 
act and indefinite ; the freedom of man is not absolute, 
and no rights are absolute. The rights which Blackstone 
enumerates are all subject to modification. There are 
none which may not be abridged or yielded or interrupted, 
and none which have a perfect realization. 

1 Hegel's Philosophie des Rechts, p. 72. Stahl's PhilosqpMs des Eechts, vol. ii. 
sec. i. p. 331. Michelet's Naturrecht, vol. i. p. 143. 

" The ultimate groiind of the rights of a person is therein that man is made 
in the image of God." — Stahl, vol. ii. sec. i. p. 331. 

This law is the ground of social laws, the unwritten laws of manners and the 
substance of the character of the gentleman. It is the assertion of a person- 
ality, and a deference for it in others. This has had, perhaps, its finest illustra- 
tion in the character of the Quaker. It has no ground in a formal distinction 
of classes, and the very quality of vulgarity is a respect for the accidents of 
life and a deference to them. 



THE NATION THE INSTITUTION OF EIGHTS. 75 

They have been called mallenable rights, but there is no 
right which has its institution in the external sphere, that 
is, the sphere defined by law, that is inalienable. The 
right of the nation is necessarily precedent to the rights 
of the individual, and they are all limited by it in its su- 
^ reme necessity. They must yield also to its force, as, for 
instance, life is subject to the call of the state in war and 
its calamities, property is subject to its claim in taxation, 
liberty may be interrupted in the peril of the whole, and 
is forfeited by crime or the suspicion of crime, and in its 
simplest phase is restricted, as when one is compelled by 
the police, in a stoppage in the street, to retrace his steps, 
or take another route. The phrase inalienable, as applied 
to rights, had its source in the theory of the social com- 
pact, in which certain rights are regarded as alienated for 
a certain consideration to society, in order to secure the 
balance. It had a certain advantage against governments 
which were denying all natural rights, and encroaching 
arbitrarily on positive rights, but its consistence is only in 
the legal fiction which it presumes. 

Mr. Hurd describes these rights, while limiting them to 
the civil sphere, as individual rights, and Dr. Lieber, as 
primordial rights. But neither phrase is comprehensive 
of them, and neither has passed into common use. They 
have no historical justification, and the assertion of these 
rights in history has not been from academies or courts, 
but from the common people. The term natural rights is 
the more simple and the more exact. It is the less likely 
to allow injury to rights through arbitrary notions. It in- 
dicates the origin and the content of rights. It has a 
better place in the common thought of men, and may be 
trusted to hold its own, in the long run, against a more 
scholastic term.^ 

1 Kurd's Law of Freedom, etc^, vol. i. p. 36. Lieber's Political Ethics, vol. i. 
p. 281. 
The declaration of principles at tise dose of the War of th© Revolution was, 



76 THE NATION. 

These rights cannot be referred to the assumed Existence 
of man in an imaginary state of nature, which is repre- 
sented as the presocial state. Blackstone refers them to 
an antecedent state of nature, and describes them as 
rights which every man is entitled to enjoy, whether out 
of society or in it.^ But this assumed state is unreal, and 
if man be represented as out of society, there is no limit 
to his action which can be defined in rights, and no power 
by which the title to rights can be conferred. The title 
to these rights is affirmed and acknowledged only in the 
organization of society. This definition has its consistency 
also only in the fiction of the social compact. 

These rights cannot be referred to the assumed exist- 
ence of man in an atomic state. Thus Kent describes 
them as rights which belong to individuals in a single un- 
connected state.2 But this atomic state is also unreal. 
Man does not exist in this isolation and cannot be rightly 
conceived apart from relations, and as these relations had 
not their origin in the volition or reflection of the indi- 
vidual, he cannot make them as though they had not been. 
The conception rests also upon a fiction. 

There is no necessity of assuming an imaginary state of 
nature in order to ascertain the foundation of natural 
rights. The consistent result of its assumption has been 



:n the words of the Continental Congress to the people, — " Let it be remem- 
bered, that it has been the pride and the boast of America, that the rights for 
which she has contended were the rights of human nature." — April, 1783. 
Journal of the Continental Congress, vol. viii. p. 201. 

1 "The rights of persons are of two sorts, absolute and relative: absolute 
which are such as appertain and belong to particular men, merely as individu- 
als, or single persons ; relative, which are incident to them as members of so- 
ciety, or standing in various relations to each other. 

" By the absolute rights of individuals we mean those which are so in their pn- 
mary and strictest sense ; such as would belong to their persons merely in a 
Btate of nature, and which every man is entitled to enjoy whether out of so- 
iety or in it." — 1 Bl. Comm., 123. 

2 " The rights of persons in private life are either absolute, being such as be- 
long to individuals in a single unconnected state , or relative, being those whicb 
jirise from the civil and domestic relations." — 2 Kent's Comm. 1. 



I 



THE NATION THE INSTITUTION OF RIGHTS. 77 

always the construction of an abstract system. These 
rights in their origin and their content can be referred 
only to the nature of man. Their foundation is in no 
sphere of external circumstance, and in no estate or con- 
dition of life, but in the constitution of man. They are 
the rights of human nature, and their derivation is signi- 
fied in the image in which that nature is made. They are 
the primal prerogatives of humanity. They have not their 
origin in human enactments, but determine the just con- 
tent of those enactments. They are imprescriptible ; the 
image in which they are given is effaced by no priestly 
illusions, and is extinguished in no imperial obscurantism ; 
they are not wholly buried beneath the most artificial of 
policies, and are worn out by no continuance of customs, 
although lying " heavy as frost and deep almost as life." 

Rights are positive^ as enacted in the law and em- 
bodied in the institutions of the nation. Positive rights 
are the determinate expression of natural rights, in the 
formal Civil and Political process. They are rights as 
they receive the recognition of the state and are affirmed 
by it and in it. Positive rights are therefore the institutes 
in which the progress of the people is actualized, and they 
define the extent of its advancement. 

Rights are positive, since their necessary definition and 
institution is in law. It is only as they are affirmed in 
law, that rights obtain their necessary obligation and their 
common recognition. Their permanence is secured and 
they become binding upon all. It is because there is in 
law this authorization of rights, that the law itself in the 
course of the organic people is never stationary ; it does 
not reach a final enactment ; it is not closed in an imperial 
code. Yet in law there is only the formal recognition, the 
deposition of rights, it is not creative of them. 

Rights are positive, since their attainment is in the hi.t- 
torical progress of the people. They are apprehended and 



78 THE NATION. 

then actualized in its development. They are afSrmed in 
the growth of its self-assertion and self-respect. There is 
in the nation a continuous advance, and in no single mo- 
ment of its existence can it be conceived as the ultimate 
and perfect state. The spirit of the people perishes in 
that oriental immobility. The rights which are asserted 
in the nation become thus the signs of its progress. They 
are the landmarks of the march of the people ; and since 
its rights are the realization of an organic and moral 
being, there is no definite terminus to its advance. 

Rights are positive, since every nation has its own voca- 
tion in history, and in each, rights are formed in its course, 
and become the reflex of its aim. They are wrought out 
in its vocation, and bear the clear imprint of its character. 
They have in every people the same universal ground 
and end, as this in each is the fulfillment in a moral order 
of the life of humanity ; but in the purpose and the free- 
dom of the people their manifestation has a definite type, 
and they are moulded in conformance to it. 

Rights are positive, since they are instituted in the na- 
tion, in a certain sphere of external circumstance. They 
are thus affected by the external relations of the people. 
The laws in which they are established are modified by 
the age, the race, the association with other peoples, and 
then also by the physical condition, the soil, the climate, 
.he products ; by agriculture, and commerce, and trade ; by 
all those elements which, in the necessary relation of man 
.n physical nature, so clearly affect, while they do not de- 
termine, national and individual development. But it is 
only a recent school which has held this in so narrow and 
exclusive a notion as to make all human freedom a fic- 
tion, and to leave to man only the poor pretense but Qot 
the reality of rights. 

Positive rights, therefore, are natural rights, as they are 
ascertained and affirmed in the normal Civil and Politica. 
process. It is only in law, in which this process consists 



THE NATION THE INSTITUTION OF RIGHTS. 79 

that natural rights obtain their necessary form. They have 
apart from this neither the requisite precision, nor the ob- 
ligation which secures their authority and validity. They 
are the principle to determine the action of the whole 
people, but in law alone they become the necessary form 
for the action of the whole people. In certain rights there 
is always a vagueness, since that which in itself, for in- 
stance, is determined in the development of the individual 
and the nation, is to obtain a formal determination in law. 
Thus the time when the majority of the individual begins, 
and the qualifications by which an elector is ascertained, 
are illustrations of this. But the principle to be regarded 
in these instances is, that the state shall not determine 
them arbitrarily but in the reason of the state. 

The relation of Natural and Positive rights has been 
represented in two opposite conceptions, each of which 
involves an error.^ 

The one proposition isolates the sphere of natural from 
the sphere of positive rights ; they are defined as existent 
in an external and formal separation. The ultimate 
ground of natural rights is assumed in the nature of per- 
sons, or the nature of things, and from it they proceed ; 
the ultimate ground of positive rights in the determination 
of the state, and from it they proceed, but there is no nec- 
essary relation between them, nor do positive rights, in 
the normal process of the nation, exist in the recognition 
and institution of natural rights. 

This conception has its source in the antithesis of natu- 
ral and political society, in which a definite existence is 
assumed for the former, and the latter is held in its sepa- 
ration as an artificial existence ; the foundation of society 

1 Anstotle distinguishes between a natural right which is everywhere alike 
^•lid, 0V(n/(6j'; and a positive right which is right only as being established, 
i/o/xiKov; but as Stahl says, so far as Aristotle defines them, they are placed in 
external and separate spheres. — Aristotle's Ethics, bk. v, eh. vii. 



80 THE NATION. 

IS laid in contractual law, and its structure is formed of 
conventional rights. This distinction was prominent in the 
thought of the last century. It w^as the formalism which 
held the same separation in natural and revealed religion, 
and then in natural and political rights, in natural and 
artificial society. It appears in two men who wrought with 
the deepest influence upon their age, each working steadily 
and faithfully in it, becoming thereby the teachers of an- 
other age, and while wide apart, yet aiding toward the 
discovery of a deeper unity, — it appears in those in whom 
was the strength and weakness of the age, — Burke and 
Rousseau. Burke opposed the notion which founds so- 
ciety upon the dogmas and theories of an abstract specula- 
tion, and fabricates it after an arbitrary scheme and an 
empty metaphysic ; instead of this, he maintained its exist- 
ence as a structure of acquired rights, and held the nation 
in its life to be identical with these, so that the form itself 
became sacred, and rights whose origin was in accident or 
in custom, shared in the permanence and the sacredness 
of the life of the nation : Rousseau opposed the notion 
which founds society upon conventional rights, and regards 
the state as an accumulation of rights, which, originating 
in an accident, are to be perpetuated inviolate with the in- 
violateness of the state itself; instead of this, sweeping 
away the existent organization and the whole existent 
polity, he maintained the inauguration of a new order, 
constructed in accordance with the abstract reason. The 
one merged the nation into the formalism of history, the 
other into the formalism of thought. 

The proposition which thus isolates the province of 
natural and positive rights, and locates each in a formal 
and external sphere, has its refutation in that the nation 
itself is the natural and the normal process of human so- 
ciety. It is the postulate in political science, of Aristotie^ 
whose solid vantage is the defense from so many errors, 
*' man is by nature a political being." The nation is the 



THE NATION THE INSTITUTION OF RIGHTS. 81 

manifestation of that which is immanent in the nature of 
man. It is the legal fiction of the social contract which 
severs the state from the natural life of man. 

The proposition, moreover, in the detachment of positive 
from natural rights, allows to the former no ground but an 
accidental succession, or a customary law, or a contractual 
form, or an arbitrary power. It can only be justified in 
the origin of the nation in force, or in the accident of his- 
torv, or in the " use which custom bends." But this is the 
unreason of the state, and it can then no longer be com- 
prehended in the moral order which is history, nor as the 
constituent of that order. And rights can allow no arbi- 
trary basis, for this presumes a contradiction, and it is not 
in its own inclination or in its indifferent choice, that the 
nation may determine their existence and whether they 
shall or shall not be. If, however, rights do not consist 
in the being of the nation as a moral person, and if a 
merely formal limitation be allowed, then in their restric- 
tion to a part, they may be always confined to an indi- 
vidual, or a family, or a class, for their only basis is arbi- 
trary. 

But this isolation of natural and positive rights is the 
sequence of a formalism which identifies the nation with 
its external organization. Positive rights have in nat- 
ural rights their content, and their immutable ground, and 
therein alone the nation is constituted in the realization, in 
a moral order, of that which is immanent in society.^ 

The opposite proposition identifies the sphere of natural 
and positive rights ; it assumes for natural rights, in them- 
selves, a valid existence, and makes them then the neces- 
sary and supreme law. In the conception of natural 
rights it finds the boundary and description of positive 
rights, and the scope of the latter is held as coterminal 

1 The entire severance of natural and political rights, wnere Burke in no way 
appears clear from the confusions :)f his Age, has been maintained in a distinc- 
tion in which natural rights are r^gar ied as essential, and positive as accidental; 



&Z THE NATION. 

with the apprehension of the former. The distinction of 
rights in their conception and in their formal institution is 
obhterated. That which is deemed a natural right is as- 
sumed to be already the law, and to possess an immediate 
validity. 

This merges the whole order of the state into the sub- 
jective conception of the individual ; the organic action of 
the whole ceases, and its conduct is left to the determina- 
tion of the private judgment. Its course is no longer de- 
fined in the formula of law and in institutions. It is no 
more the expression of an authority, which is over every 
individual, and to which each ahke is subject ; its language 
is no longer esto but only videtur. This is the elevation 
of the private opinion of the individual into the place of 
the government of the whole. Its only issue is the set- 
ting up of a popular absolutist, the dissolution of the state 
into its atomy, and the inauguration of a conflict of each 
against all. 

As natural rights are held in the subjective conception 
of the individual, they have not the clearness which is 
requisite to a law which shall be the form of action for the 
whole. They are vague, and the condition of rights is 
that they shall be defined in *a form which shall enable 
them to be held with decision. They are to be sustained 
against injury, and are to be obligatory upon all, and there- 
fore it is necessary that they should have so clear an ex- 
pression that they may be enforced over all, but they obtain 
this only as they are asserted in a positive form in the civil 
and political organization. 

Aatural rights as universal, and positive rights as limited to a part. But if 
positive rights are accidental, then the state, as the process of rights, can be re- 
garded only as the accident of history; and personality, moreover, is not deter- 
mined in accidents, but in its own determination is the realization of order 
The definition, also, while limiting positive rights to a part, fails to define thii 
part and the ground in which it is ascertained, and in its separation also of nat' 
ural from positive rights, it leaves the former a mere abstraction, since righn 
are valid only in their positive institution. 



THE NATION THE INSTITUTION OF RIGHTS. 83 

The proposition is also inconsistent with the existence 
of the nation in its historical development. There is in 
its advance a constant outcome of rights. It is not the 
application of a perfect system of natural rights, for which 
there is to be assumed the authority of positive law. The 
whole body of rights can no more come forth complete in 
a single moment than can the nation itself. And the indi- 
vidual subjective conception can in no moment assume to 
be the law or the measure of this advance. It is mani- 
fested always in the development of the spirit of the or- 
ganic people, and no single age can apprehend or attain a 
final and perfect embodiment of rights. While there is in 
the definition of natural rights in an abstract system, the 
weak attraction of a certain intellectual proportion, it is 
yet an empty notion which regards rights thus as complete 
in a system, which, when received from the schools, is to 
be analyzed and applied by the people. 

There is a tendency, which this proposition illustrates, 
to forget that rights are and can be real, only as they are 
established in the civil and political organization. They 
are slowly, and only with toil and endeavor, enacted in 
laws, and moulded in institutions. It is only with care 
and steadiness and tenacity of purpose that those guaran- 
ties are forged which are the securance of freedom, and 
they are to be clinched and riveted to be strong for de- 
fense and against assault. The rhetoric which holds the 
loftier abstract conception, avails nothing, until in the 
constructive grasp and tentative skill of those who appre- 
hend the conditions of positive rights, it is shaped and 
formed in the process of the state. The former is often 
the quality of some individual thinker, whose ideal is cold 
also in its distant elevation, and who, regarding in events 
only the conflict )f ideas, is indifferent to the real life of 
men and nations, and this indifference may become, wben 
his own ideal is unrecognized, the ground only of the 
Bcorn of an unsympathizing imagination — not the noble- 



84 THE NATION. 

ness but the weakness of disdain : the latter is the work 
of the statesman who alone knows how patient and vigil- 
ant is the toil which is the condition of the institution of 
rights, and how wary and bitter is the antagonism of the 
forces, from whose selfish grasp the ampler field of rights 
is wrested, and who forgets in no immediate end the long 
result to be attained, nor in the exultation of momentary 
success, or the discouragement of momentary failure, how 
firmly and how broadly rights, to be secure, must be en- 
acted in the laws, and moulded in the institutions of the 
state. 

There is a tendency, which this proposition also illus- 
trates, to represent natural rights as construed in some 
system, and to regard the nation as an external structure 
to be erected in conformance to it. The nation is to be 
shaped by these political architects after certain specu- 
lative abstractions. The whole existent organization is to 
be destroyed to effect some end of the individual thinker, 
and again to be built anew in the individual design. Then 
all institutions that have not the exact proportions of the 
momentary schedule are to be leveled to the ground, and 
all that has been achieved in the work and sacrifice of gen- 
erations must make room for a structure designed in the 
individual conceit. It is this spirit, which is the evil of 
fanaticism, that appears as a vain and destructive force. 
When there follows the wreck of the whole existent organi- 
zation, it can find in the abstract reason the ground onl-^ 
of a formal order, and its work, out of a prior system of 
independent rights, can result only in a formal unity. But 
the nation is not such that it may be constantly taken down 
and rebuilt again ; the city walls, when they are torn away, 
may be piled up from the quarries of the hills, as gath- 
ered stones, but it is not thus in the political life of the 
people. And when this destructive course is begun there 
is no limit to it, but, as the nation is reconstructed after 
Bome abstract conception, it comes to be regarded as onij 



THE NATION THE INSTITUTION OF RIGHTS. St 

an external order, and there is the justification for some 
further change in some new theory. But stabihty is the 
condition of growth, and the furthest advance of a single 
generation is slight in comparison with that which is em- 
bodied in the nation, in the long result of time ; and the 
largest design of a single individual is contracted before 
that which is attained in the vocation of the nation in his- 
tory. This conception can only appear in an unhistorical 
age, and in the extremes, — the provincial and cosmopoli- 
tan theories which coincide in their denial of the organic 
and moral being of the nation. Its source is in the false 
and deceptive exaltation of the individual, and it be- 
comes in its assumption of the individual phase of .the 
conception of natural rights, as the law of the action of 
the state, the precedent of a mere egoism. 

The proposition in defining the relation of Natural and 
Positive rights, which isolates the province of each, and 
locates each in a separate and external sphere, and the 
proposition which identifies them, so that the individual 
conception or system of natural rights is apprehended as 
the immediate formula of action in the nation, are alike 
without justification. 

In their necessary relation, natural rights have their de- 
termination in positive law, — the formula of positive rights. 
."Natural rights are the content of which positive rights are 
the form ; natural rights are the ground of action, posi- 
tive rights the law of action. The relation is not one of 
identity nor of difference, but of development through 
content into form.^ 

Natural rights in their positive determination, are fur> 
tlier defined as they are determined in the Civil or the Po- 

1 Melancthon has a passage, cited by Hegel, — " Verum quia jus positivuir 
determinatio est juris naturalis, facile intelligi potest, jus positum tamen ha- 
bere aliquam regulam videlicet, ne pugnet cum jure naturali." 

" AUe rechtsbildung hat danach ein doppeltes moment, ein Gottlich-nothwen- 
iiges (naturrechtliches) un(f em menschlich-freie (positives) und beide Jurch- 
dringen sich ohne abgranzung bestehen in UEtrennbarer einheit." — StahL 
PhUosqphie des Eechts, vol. ii. sec. i. p. 220. 



86 THE NATION. 

litioal process in the nation. Civil rights belong to the 
jural; political rights to the moral organization of the 
nation : civil rights are those in which the individual ob- 
tains protection ; political rights are those in which the 
person obtains a realized freedom : civil rights belong to 
every one who is subject to the authority of the state ; 
political rights belong to every person who is a member of 
the state : civil rights define private relations ; political 
rights define public relations : civil rights are asserted in 
the jurisprudential order ; political rights in the constitu- 
tional organization of the political people : civil rights at- 
tach to the province of private law ; political rights to the 
province of public law : civil rights are resident in the 
commonwealth ; political rights in the nation. 

Civil rights are commonly designated as the right of 
p^ersonal security, of personal liberty, and of property ; 
or the right of life, of liberty, of property ; to these is to 
be added the right of access to the course of law, in which 
the preceding are sustained, or the right to the protection 
of the law — the equality before the law. 

The right of personal security or of life, is simply the 
right to existence, the same right, as has been said, which 
one has to be where he is, that Kearsarge or Cape Cod 
has to be where it is ; it embraces the right to the body, 
to health, to the limbs, to the senses and their use. There 
is often connected with this the right to reputation, and 
this as a right is also indicative of the worth and dignity 
of a person. From real honor, which is in man, it is true 
that none can detract, and real integrity is beyond earthly 
moil, but there is the right to the consideration in the ex- 
ternal order of the worth of personality, and this right 
consists in the defense and maintenance in the externa, 
sphere of the integrity of the individual.^ 

1 Mr. Spencer p aces the right to reputation on the basis of property, — " Kep- 
Otation, as a thing which men strive to acquire and preserve, may be regarde<i 



THE NATION THE INSTITUTION OF EIGHTS. 87 

The right of personal hberty is the right of external 
freedom ; it embraces the right to locomotion ; the right 
to labor, — to earn Dne's bread in the sweat of one's brow ; 
the right to unrestricted action in the choice of the voca- 
tion and occupation of the individual. There must be 
freedom to come and go, and freedom of action, and space 
in the state for the individuality of each to work outward ; 
and none can be hindered or restrained from his vocation, 
and every occupation is to be opened upon the same con- 
ditions to all. 

The right of property is a personal right in its strictest 
form, and is especially illustrative in certain phases, of the 
relation of the individual and the nation. Its definition in 
formulas and theories may be traced through the vridest 
range of legal and political thought, and it bears the im- 
press of the spirit of all their schools. It is more com- 
plex than the preceding, and appears in more opposite 
representations ; and in historical and in recent theories it 
has met with strenuous denial. 

" Thou shalt not steal," were the w^ords of the ancient 
Hebrew commandment, but " la propriete c'est le vol," said 
M. Proudhon, and the inference was reached through the 
rejection of all ground on which the right to property has 
been asserted in the schools of economy. The Hebrew 
commandment presumed the existence of the nation ; it 
presumed a will whose determination was in righteousness, 
and in which the nation had its foundation ; and the exis- 
tence of property, then, was recognized as an institute of 
the nation, not its first nor its main institute, but subse- 
quent to many others, as the order of the family, the 
rest from labor in the succession of the week, and yet it is 
presumed with them and as sacred as they. 

The legal definition which has most widely prevailed, as 

fts p^ope^t3^" — Social Statics, p. 162. But the conception is lost when placed 
on any other ground than the worth of personality. Am old writer has said, 
"* A good name is better than great riches." 



88 THE NATION. 

to the ground of property and of a right to property, has 
been stated in the aphorism of Savigny, — that property is 
founded on adverse possession matured by prescription. 
This is simply the formula of the course of Roman law. 
It refers the origin of property and of the right to property 
to mere force, the grasp of the " strong man armed who 
keeps his goods in peace ; " but^orce is not the source of a 
right, nor is the right evoked in holding fast what one has 
gotten, nor is its claim so matured by the lapse of time, as 
to win that measure of respect from the adverse that shall 
overawe their desire, and prevent possession from yield- 
ing to the assault of those who at length in turn may 
prove the stronger ; nor can the mere continuance of pos- 
session justify the deference of men for the institution of 
property. The same legal conception is repeated in a 
more narrow form in the phrase of Blackstone, that in 
occupancy is the origin of property and of the right to 
property. But occupancy is only the incident of property, 
and not the ground of it, nor of its right, and the phrase, 
instead of characterizing the archaic condition, — the prim- 
itive estate of man, from which Blackstone with his specu- 
lations journeys forth, — belongs to a later form of society 
and to a complex system of jurisprudence, and presumes 
for its recognition an established order.^ 

These formulas indicate the line of legal thought, but 
there is a wider scope and grasp in the theories which ap- 
pear in the later periods of political speculation, and there 
is an advance in the history of political theories beyond the 
history of legal formularies. The illustration of this is in 
the theories of Locke, of Considerant, of Hegel. 

The proposition of Locke retains only an historical in- 
terest. Locke represented the land as originally of nc 
value, and then he made the acquisition of property to 
consist m the application of labor, by which the land 
oecomes of value to man ; the land is valueless, and prop* 

1 See Maine's Ancient Law, pp. 244 - 248. 



THE NATION THE INSTITUTION OF RIGHTS. 89 

erty originates in work upon the land, and in the growth 
of population. But this defines only a certain mode of 
acquisition and not the origin of property, or of the right 
to property. It evades the origin of property, for the right 
to work upon a thing presumes the possession of or prop- 
erty in the thing, and then the work put upon it creates 
a higher value, but not the thing itself. And if the in- 
creased value which is the result of labor be allowed to 
the individual possessor, the increased value in the greater 
degree may be the result of the growth of population or 
of the good order and government of the whole ; but the 
individual possessor has no immediate or exclusive right 
to the latter increase of value. The value may also in 
many instances have been increased by omitting to put 
labor upon the land, as in the wooded lands or the 
mineral deposits of a country w^hich becomes populated. 
There is certainly in labor an element of property, but 
not the origin of property nor of the right to property, 
and in labor as a physical force man effects no result in 
comparison with nature in her constant change of physi- 
cal forms, in her ceaseless laboratories. 

The proposition of Considerant is connected with this, 
and starting from another premise holds the same posi- 
tion. It represents the physical world as the common 
good and the gift of nature, and as belonging to man, but 
as yet undivided, and open to all to come in and take their 
estate. Then no individual or generation can claim pos- 
session before another, while that which each lays out upon 
the land by his labor is his own possession, since it is his 
own creation and thus not of nature. Those, then, who 
come afterward, not being in actual possession, have also a 
light to the land, but only to the land, not to the improve- 
ment laid ouf upon it, wnich has created its higher value. 
But the defect in this proposition at once becomes appar- 
ent when the application is made. If the actual pos- 
sessors should hold on to taeir exclusive possession, tha' 



90 THE NATION. 

would be unjust to the new comers, who aic thereby ex» 
eluded from possession, and have the common gift and good 
of nature withheld from them ; therefore the actual pos- 
sessors must divide the possession of the land with them, 
but that would be unjust to the actual possessors, since 
the result of their labor, and it may be of their fathers' 
labor, would be taken from them. There is, there- 
fore, a compensation to be provided for them, and this is 
represented as the security and the equivalent of labor. 
Then since the land cannot be usefully further divided in 
this parcelling among all comers, the actual possessors must 
provide for the later comers employment and means of 
labor upon the land, and this is rated as the compensation 
in turn to them for their claim upon the land, as the com- 
mon good and gift of nature, and is held as the equivalent 
to them for their deprivation from it. It is represented as 
more than an equivalent, since it returns more than could 
be obtained from the original good and gift of nature in 
fruits, hunting, fishing, etc. 

This proposition assumes a law of compensation, and an 
exchange of equivalents, in order to its justification ; but 
the principle which it assumes is not substantiated. The 
compensation allowed does not meet the claim of those 
who are deprived of possession and are kept from their 
share in the land, and instead of the common gift obtain a 
forced contract. That which is the postulate of the whole 
proposition is also immediately evaded, for what is the value 
of the original land as part of the common gift and good, 
and what is the value of the improvement laid out upon it 
by labor, and what is the actual possessor to allow for that 
which he may have consumed out of the common gift and 
good, in the depreciation of its original value, as wood or 
minerals, or the exhaustion of the soil by crops ? Then ir 
the providing of an employment, the sphere and means of 
labor on the land, the claim of those who are kept from 
possession of the land is not satisfied, for th/s which gains 



THE NATION THE INSTITUTION OF RIGHTS. 91 

them subsistence from the land and a return for service, is 
not the equivalent for tneir deprivation also from the land 
itself. The proposition furthermore is inconsistent, since 
as M. Proudhon in availing himself of its premise has said, 
if nature be the common gift and good open before all, it 
does not belong to the actual possessors nor to their fa- 
thers to work on it exclusively, nor to hold exclusively its 
values. It is furthermore defective in its assumption of 
the common good of nature as alone a gift, and its separa- 
tion thus from the return of labor, since labor has the gift 
of nature for its ground or its reward. " The advocates of 
this theory," says Stahl, " look upon nature as only a treas- 
ury of goods, which has not God for its Lord but only 
men, and so they can divide them up." ^ 

The proposition of Hegel has a higher worth than any 
preceding it in recent politics. According to Hegel,^ the 
beginning of property is in the fact of occupancy ; but 
he says occupancy is only the incident, and property ex- 
ists in the occupancy by a person, and the ground of the 
existence of property is in the right of a person to a thing. 
The possession of a thing is in the will, that is, in a 
person ; and the possession of a thing is mine as I assert 
my will over it, and thus as I withdraw the assertion of my 
will from over it, I may alienate the thing which was in 
possession. The first comer is the possessor, not because 
he is the first, but as he asserts a will over the thing, and 
he is first only in relation to some second or third person 
who may come afterwards. The right is in the will, 
that is, in the person, and the actual possession is in the 
assertion of the will ; and in property there is only the ac- 
tualization of the right of a person to a thing. This prop- 
osition is true in its recognition of the fact that the mate- 

1 See Stahl, Philosophic des Rechts, vol. ii. sec. 1, p. 370, whose criticism of 
this proposition I have mainly followed, and whose whole statement of property 
has the highest value. 

* Hegel's Philosophie des Eechts, pp. 78-94. 



92 THE NATION. 

rial world exists for man and man is placed over it ; .t i$ 
true also in its definition of occupancy as only the circum 
stance, for it cannot be the ground, of the institution of 
property, nor of the right in property ; it is true also in 
representing possession as in the will, for property belongs 
to me only as I assert my will over it, and I may alienate 
or transfer it by an act of will. But this proposition can 
only be justified, not as the existence of property is left to 
be determined simply by the circumstance of occupancy, 
in a precedence in time, but as property is regarded as 
the gift of God to man in the material world. It is man's 
only as his personal being ; that is, his life in its moral 
realization is from God, and it is his in and for the ful- 
fillment of his vocation in a moral order in the world, and 
apart from this there is nothing which is his own. The 
right to property and the possession is therefore in person- 
ality, and the existence of property is of the gift of God. 
It exists in the sphere of the vocation of man, and it is 
instituted and maintained in the nation as the nation is 
formed in the moral order of God in the world. 

The common theories of the schools in which it had 
been the aim to establish the ground of the right to prop- 
erty, were subjected by M. Proudhon, in the approach to 
his famous inference, to a thorough and vigorous criticism. 
The right, he said, is not derivative from the fact of occu- 
pancy, for the arbitrary seizure of a thing cannot become 
the ground of a right to it; the momentary possession of 
a thing still less can become the ground of a continuous 
right ; and occupancy can at the most claim respect only in 
so far as the individual actually and immediately exercises 
it ; and then, also, possession can be respected only in so 
iOng and so far as actual occupancy appears. It is not de- 
rivative from labor, for the right and the fii-eedom to labor 
apon a thing already presumes possession of it, and the 
labor may create a higher value in it, but not the thing 
*tself ; the value may also be diminished by labor upon it, 



THE NATION THE INSTITUTION OF RIGHTS., 93 

as tlie detriment that follows the destruction of forests. It 
is not derivative from positive law, that is, a legal arrange- 
ment and cantonment in the beginning of society, for posi- 
tive law can regulate nothing which does not of itself 
already exist ; the reference of its origin to a formal law 
would leave still, moreover, only an arbitrary ground. 
Therefore, said M. Proudhon, since all the theories of 
your schools fail, since there is no ground in all that you 
have claimed for the right to property, property is not a 
right but a wrong ; property is robbery.^ 

The argument of M. Proudhon is conclusive against the 
theories he assailed, theories held often as the idle or the 
convenient evasion of a deeper truth, and held in the deg- 
radation of the nation, as the consequent of the schemes 
which deny its moral being, and assert its existence, as 
only the support of private interests in the combination of 
capital and toil. The error of M. Proudhon is in his pre- 
mise. The existence of property is presumed to be a 
wrong, because no title assumed to the acquisition of prop- 
erty is proven to be founded in justice. But as Stahl has 
said, the title of acquisition is not the basis of prop- 
erty, but the property is the basis for the title, and occu- 
pancy and labor and law are indicative of possession, on 
the ground that apart from them the necessity and justice 
of property exists. M. Proudhon has proven nothing 
against the right in the existence of property, nor against 
the right to property, but he has proven the defect of the 
weak and false theories in which a foundation for the insti- 
tution of property has been sought. M. Proudhon has 
been called an atheist, but those by whom the accusation 
has been made may have to consider how far their repre- 
sentation of the origio and institution of property, which he 
assailed so passionately and so conclusively, separates them 
from atheism. They who hold the tenure of property in 
these theories may justify themselves, but it may be for 

1 Prcudhon, Systeme dea Contradictions Economiques^ vol. ii p. 234. 



94 THE NATION. 

them to ask what they may have in these theories to pro* 
tect them and their rights ; or what the future of society 
may be which is educated in them; or how they may 
meet those crises which try the defect in social schemes, 
and which they may defer in their dogmas but cannot de- 
fer in history, the inevitable days in which false theories 
and false systems are burned up like stubble. It is in the 
avoidance of the divine origin and subsistence of the nation, 
and in the indifference to its existence in its moral being, 
and in the assertion of individual and economic schemes, that 
these theories have prevailed, and in them they have their 
consistent assumption. The Hebrew commandment pre- 
sumed the being of the nation in which it was declared, as 
a moral order, and as subsisting in the name of a righteous 
will, from whom the commandment came, and in that con- 
ception the tenure of property was defined. 

The origin of the existence of property and of the right, is 
in no formal law or precedence, and law is only regulative 
and descriptive of it. It is in no external circumstance, 
and occupancy is only the incident of it, and, in its exclu- 
sive apprehension, allows to it no moral significance. There 
is in neither a formal law nor an external circumstance the 
source of rights, and it is only as property consists with the 
nature and vocation of man that occupancy and law follow 
from it, but its origin is not in them. 

The ground of the right in the existence of property, 
and of the right to property, is in the vocation from God 
in the world, of the individual and of the nation. Prop- 
erty is the material for the work of man in his vocation on 
the earth, and in that alone is the ground of its right. If 
property becomes in itself an end, then personality is sub- 
jected to the things which it possesses. If it be held apart 
from the vocation of man and the moral relations and obli- 
gations involved in that, then it becomes mere possession, 
the instrument of a selfish interest, and the means for the 
degradation of personality. 



THE NATION THE INSTITUTION OF EIGHTS. 95 

To tlie individual and to the nation God gives his pow- 
ers and his working field, and these are the talents of each, 
and in this alone does property consist. It is thus, as it 
is given in and for the vocation of man on the earth, that 
its use affords a ground for the manifestation of character, 
and there may be in it the expression of individuality, and 
elements of culture and freedom. In this also is the sign 
of the sacredness of the relation which the individual and 
the nation bear to the earth. Thus, also, if there be no 
recognition of a vocation which the individual and the na- 
tion are to fulfill, then the origin of property is only in the 
arbitrary or the accidental ; it is in its origin arbitrary — 
the seizure by force and choice of that which each may 
lay hold of; or accidental — that which each in his for- 
tune may stumble on or is in luck to obtain, and it is the 
sign only of the avarice of men who clutch it in their 
grasp, or the risk of men who find it by the way.^ 

The origin of the existence of property and of the 
right to property is not in the physical condition of man. 
There is no more ground in his physical being for prop- 
erty than there is in the other animals for property, as in 
it man has no more rights than they. Man is dependent 
upon the physical world, and in his physical being is 
related to it, through the sweep of all its changes, and it 
may be in the evolution of all its forms : but in his spiritual 
nature, he is over it ; he exists in a higher sphere ; his cit- 
izenship is in another world; and in that ampler realm of a 
realized freedom there is alone the ground of rights. In 
the physical world man is to find the satisfaction of his 
physical necessities, and therefore he has power in it and 
over it. But property is not therefore simply the means 
for the satisfaction of physical necessities, nor is its ground 
in the aimless subjection of the material world ; in this 
ihere can be the source of no right 

1 Dr. Bro-wnson's definition of property is as profound as it is beautiful, — 
"Property is communion with God, through the material world." — Tlie Amerv- 
fOA Republic, p. 15. 



96 THE NATION. 

In the physical world man has a formative power, and 
there is in his physical condition the hard necessity for la- 
bor, but labor follows from the existence of property and 
the right in it ; not the reverse. It is an element in 
property, and in the necessary condition of life it appears 
as the wages for toil and the return for service, but labor 
itself passes into the higher conception of work in the 
vocation of man. 

The recognition of property on this postulate is alone 
consistent with the correspondence in the rights and duties 
of property. When recent economists, as Bastiat, admit 
that the true condition of property and the relations of 
capital and labor can be fixed by no adjustment of eco- 
nomic schemes, but by the recognition of a moral obhgation 
in the use of property, it becomes an evidence of this prop- 
osition as to the ground of property. It is not simply the 
purchase by the individual, which is to be held in exclusive 
use, and suffers an indifference to moral relations ; it has a 
moral aim, and thus the advance in civilization will not be 

in its negation, and the desiradation of all in a mere com- 
es ' o 

munism ; there will be its better assertion, and in the 
recognition of the duties of property as correspondent to 
its rights there may be the coming of the true communism, 
of which the world once has seen the type. 

The relation of property to the fariiily has its basis in 
the constitution of the family, as a moral order in the 
world. The fact that in archaic society it is held as a 
common possession in the family, is consequent on the 
fact that the family is the archaic form, and the inception 
of the moral order and relations of the world is in the in- 
stitution of the family. Thus the relation of property to 
the family does not cease in the progress of society, but is 
held with more definite limitations and provisions as soci- 
ety passes into more complex and varied relations. 

The process in the realization of a moral order, in the 
institution of property, appears also in the realization of 



THE NATION THE INSTITUTION OF RIGHTS. 97 

the nation. The people possesses in the land the external 
sphere of its vocation in history. The right to the land is 
not in the fact of occupancy, but in the vocation of the 
nation as a moral person. The nation has the right to 
property in its own vocation, and as a moral order it is 
instituted and maintained, in the nation, in and with the 
vocation of the individual. Thus property is to be main- 
tained as an institute of the nation, and secured alike to 
the individual and the familv and the nation. The right 
of property, as it is existent in the nation, has its formal 
assertion in the right of eminent domain or expropriation. 
It obtains, not because the right of one man, or of a col- 
lection of men, is precedent to the right of another, and 
there is no ground on which the rights of several should 
exclude the right of one, but because the right of the na- 
tion is necessarily precedent to the rights of the individual. 
Yet here also the nation in its moral order is to regard 
and to maintain the existence of property. Therefore in 
the formal exercise of expropriation, an adjustment is to 
be made by compensation. The obvious maxims given 
by Bluntschli in defining this are, first, that the nation 
maintain the freedom and the security of property ; and, 
second, that it exercise no arbitrary disposition of prop- 
erty. And as an element in property is labor, the nation 
in the exercise of expropriation is to render compensation 
to the individual for the return' of his labor appropi'iated 
by it. It is the fact of the nation as a moral order that 
makes the maintenance of the rights of property impera- 
tive, and while it belongs to it to define values in the issue 
of money, it is to make this issue the representative of 
actual values, and while its own right is precedent — and 
may be exercised in its peril, as in war — in the possession 
V)f all property, yet in lis normal course, if it fails to sus- 
tain the validity of contracts and exchange, in correspond- 
ence with their actual values it becomes itself destructive 
of property, and as the obligatioa of the nation is higher 
7 



98 THE NATION. 

as its right is higher, every act of national dishonesty is the 
greater wrong, and is subversive of the moral order of the 
whole. 

The right to the recognition of these civil rights, and 
to their maintenance in the civil order, is the primary 
civil right. It is the necessary condition, in which all 
other civil rights are established, and without it they re- 
main a fiction. To each and all the nation is to leave 
open the avenue to these rights, and is to allow it to be 
closed in the private interest of none. This is w^hat Burke 
has called the right to justice. It is the right, in the or- 
ganization of justice, of every man to a fair trial for him- 
self and against every other man. The justice of the 
state is to be for each and all, or it becomes the institution 
of injustice ; its tribunal is to be open to hear the cause of 
all, or it becomes the inquisition of wrong. It is the right 
of all to equality before the law. 

This right is implied in the necessary conception of law 
as universal. It is indicated in the most ancient symbols 
of justice, and its types are traced in the most archaic of 
social forms. The earliest traditions are of the institution 
of tribunals, to which all may appeal, and in whose judg- 
ment all may abide. The signature of justice most widely 
found is the scale held with fair and even balance. It is 
the figure of one who is blindfold and sees not those who 
may approach, but whose 'ear is open to the cry of all. 
The rich and the poor, the strong and the weak, may all 
share its protection and must abide its decision. The life 
of the humblest is as sacred as that of the greatest, and 
the possession of the poorest in shelter and tools, is as well 
regarded as the estate of the rich. 

It is this principle of equality before the law that ap- 
pears in the foundation of social order. In the myths of 
Plato, it is represented in the inception of society. " Man 
was furnished with all he needed, for his individual 
life ; but he had not yet the wisdom by which society is 



THE NATION THE INSTITUTION OF RIGHTS. 99 

formed. This wisdom was kept in the citadel of Zeus, 
and into that awful sanctuary forethought could not enter. 
As time went on, the power and weakness of man was 
seen. He instituted ordinances of worship ; he defined 
language ; he invented clothing and procured food for him- 
self. But he lived in isolation and was unfit for social 
union. Then if men were scattered they were in danger 
of perishing from wild beasts ; if they tried to combine, 
they were scattered again by mutual violence. There- 
upon Zeus, fearing for the safety of our race, sent Hermes 
with self-respect and justice, that their presence among 
men might establish order, and knit together the bonds of 
friendship in society. ' Must I distribute them,' said Her- 
mes, ' as the various arts have been distributed aforetime, 
only to certain individuals, or must I dispense them to 
all ? ' ' To all,' said ^eus, ' and let all partake of them. 
For states could not be formed, if they, like the arts, w^ere 
confined to a few. Nay, more, if any is incapable of self- 
respect and justice let him be put to death, such is my 
will, as a plague to the state.' " ^ 

The wide historical influence of the axiom of the juris- 
consults of the Antonine era, " omnes homines, natura 
sequales sunt," nas been illustrated by a recent historian of 
Roman law. Its auspicious assertion as a principle and 
aim in the destination of the state, in the beginning of the 
independence of the republic, will always have an histor- 
ical significance. 

The recognition of an equality before the law is slow to 
come, and the attainment of an impartial justice is marked 
by careful and painful steps. It seems so fair an ideal, as 
to win the thoughts of men. It alone reflects that holy 
faith in justice, which men feel in their hearts has some- 
where its abode, and to which the right does not appeal in 
vain. It is the only shield of human weakness, against in- 
human wrong and the violence and fraud and oppression 

1 Thetetetm, sec. 21. 



100 THE NATION. 

of wicked men, but many have fallen striving for it whc 
have been the prophets of the world whose cry is still " ho\« 
long ? " It is the policy of evil to devise against it, and it 
is overborne by all the evil elements of our nature, by sel- 
fishness and pride and lust. 

Political rights are those rights which are instituted in 
the normal process of the people as an ethical organism. 
They are those rights which have their ground in the 
being of the nation in its moral personality, and in them 
the freedom of the people in its organic unity is realized. 

Political rights include the riglit of every person born 
in the nation, to be and to remain in its citizenship. The 
nation cannot arbitrarily determine who shall or shall not 
exist in it as members of it. " The right of citizenship as 
distinguished from alienage," says Kent, in defining the 
law of civilization, " is a national right, character, or con- 
dition." This is applied to " all persons born in the juris- 
diction and allegiance of the United States." ^ This is 
irrespective of ancestry, and consists with a national not a 
racial principle. It is involved in the being of the nation 
in its moral relations, and therefore, as every other right, is 
only forfeited by crime, which is in its nature and effect 
the severance of relationships. 

Political rights include the right of every person who is 
a member of the nation, to participation in its resultant 
advantage. The strength and power to which it has at- 
tained are to be the aid and defense of every member, and 
the domain of its order is to be open to him. Its histori- 
cal memories and associations are no more truly the glory 
and hope of all its members than are its results the pos- 
session of all. It has a universal end, and to restrict its 
advantages to one or to a few, to an individual or to a 
class, would involve the subordination of the whole to pri 
?ate and special ends. 

1 2 Kent's Comm. 39. 



THE NATION THE INSTITUTION OF RIGHTS. 101 

Political rights include the right of every person who ig 
a member of the nation to the actual determination of a 
person in its destination. The personality of each is to be 
respected in it, and to act in it, not negatively but posi- 
tively, not passively to be allowed as if the nation were 
only some power over it, but it is to act as itself a deter- 
minate power in it. Since the normal and moral process of 
the nation is in the determination of personality, every in- 
dividual who, being a member of it, has personality, has the 
right to its determinate assertion in the nation. It is its 
defect when, by an arbitrary act, certain persons are in- 
cluded and determine its action and certain other persons 
are excluded. 

Political rights include also the recognition and insti- 
tution of all those rights which are involved in the rela- 
tions of life as a moral order. These are to be guarded 
and affirmed by the nation, which is invested with authority 
to maintain the order of society. Thus the family in its 
normal and moral conception is to be maintained by it, and 
the violation of its organic law is to be punished. 

Rights have their correspondence in duties ; they may 
be arbitrarily separated, but it cannot be without the de- 
fect or the distortion of the one or the other. Since rights 
have a moral content, to every right a duty corresponds, 
but it does not follow that a right corresponds also to every 
duty, since there are immediate duties in the relations of 
life, as for instance, the duty of a child to its parents. 

Rights and duties have the same ground in personality. 
Rights have not their ground in duties, and do not pro- 
ceed as if only derivative from them. A right is a con- 
dition, in which there may be th-e fulfillment of a duty ; but 
a right is not simply the means for the fulfillment of a duty, 
only the instrument by which a duty is performed, and hav- 
ing apart from that no significance. Rights no less than 
the fulfillment of duties have their immediate content in 



102 THE NATION. 

personality ; they are therefore to be held not simply as sub» 
sequent to duties, and as if only incident to them. Since 
rights proceed in their conception from a righteous will^ 
and subsist in that, therefore in the realization of rights 
there is the fulfillment of duties. The rejection of the 
immediate foundation of rights and duties in personality 
can result only in the construction of a formal law of duty 
and a formal system of rights. 

Mr. Caird has said that, " in the philosophy of Kant, 
the demand for the rights of man first manifested its true 
nature, because in that philosophy the claim of right was 
based on the idea of duty." ^ But rights- are based in per- 
sonality, and in that alone can they subsist, and from that 
alone is their content derived. Kant asserted that the 
rights of man exist only in conformance to an abstract 
moral law, and only for an end defined in that law, but 
this can become the ground only of a formal conception 
of rights and a formal freedom. It would merge the being 
of the state into a formal system of laws. The necessary 
inference of this postulate of Kant, is the derivation of 
the right of personality from a law of duty, and thus he 
assumed it to be resultant from the law, — " Let not thy- 
self be used as a means." But this reference of the right 
of personality to an abstract and formal law, and its defini- 
tion in the limitations of that law, is not a sufiicient ground 
for the right of personality. This law, for instance, which 
requires me to guard my own personality, and forbids that 
I should allow myself to be used as a means to an end, 
is obviously too narrow ; it does not comprehend the 
right of personality, for this involves the right against 
other persons, that they also shall respect my personality, 
and shall not use, nor dare to use me as a means to an 
end. 

1 Inaugural Lecture in the Common Hall of Glasgow College, by Edward 
Caird, 1866. Kant's Rechtshhre, sec. xliii. See Stahl, Phil, des Hechts, vol. u 
lec. 1, p. 96. 



THE NATION THE INSTITUTION OF RIGHTS. 103 

The rights of the organic people, or national rights, 
have an integral unity as they are instituted in the real- 
ization of the nation as a moral person. They do not 
compose simply a formal system. They are not a mere 
accumulation of institutions, to be held by the people, 
as a miscellaneous budget of receipts, nor do they exist 
only as proceeding from the duties of the people, and as 
the resultant of certain obligations. The rights of the 
people subsist in the consciousness of the people in its 
unity, and this is the condition of political rights. They 
bear in their form the imprint of the type of the nation's 
individuality, and are the expression of its spirit. In their 
institution they constitute its political order. There is 
thus in its political course the expression of its aim and 
the subjection to it of the whole external order. There is 
indeed apparent in the institution of its rights, the influ- 
ence of the physical condition of the people, the age, the 
land, the climate, the races, but these only modify while 
they cannot determine its process ; this is determined only 
in the freedom of the people, and is the manifestation of its 
spirit. 

The rights of the people have a universal as an indi- 
vidual element, and move tovrard one end in every nation, 
and thus there is a correspondence in different nations. 
But the one element does not preclude the other, they have 
an integral and individual character. They have no ex- 
otic forms, and cannot at once be transplanted from one 
people to another. They cannot be applied as abstract 
ideas adopted vs^ith some abstract system. Thus, in the 
development of rights, while they may not always have 
the harmony of a system, yet formed in the life of the 
people they have a deeper unity, and, wrought and forged 
in the great events of its history, they have subtler power 
and robuster proportions. 

There is a certain representation of rights in which 



104 THE NATION. 

they are defined as original and acquired rights. But 
strictly there is only one original right, the right of per- 
sonality, and to this all others may be referred. It is the 
right which is primitive in the rights of man, the right 
of a man to be himself. The term acquired rights, when 
rights are held as the acquisition or private property of 
certain individuals or families, denotes a condition isolated 
from the normal and organic being of the nation, and de- 
riving its content from traditional force, or custom or acci- 
dent ; it describes rather the privileges or prerogatives of 
an individual or a class. These may invade the whole 
sphere of natural rights, and when encroaching upon them, 
become in reality the ancient wrongs of a people. Ac- 
quired rights are positive, but they have no necessary basis 
beyond, and exist only as the creation of law. 

There is a definition of rights as absolute and relative. 
The defect in the phrase absolute, as applied to rights, has 
been noticed ; there is, moreover, no necessary antithesis to 
separate relative rights and the rights of personality, since 
all rights are the rights of persons in certain relations. 
The term describes mainly the rights of persons in cer- 
tain necessary relations, as for instance the rights in the 
family, of the parent and child, of the husband and wife, 
and these relations are founded in nature, and maintained 
by the nation, as belonging to a moral order. 

There is sometimes added to the same category the 
rights of corporations, — " artificial persons created by 
law, under the denomination of persons." ^ These rights 
are more exactly defined as franchises and privileges. 
They are formed by vesting a certain individual, or a 
number of individuals, in a corporate character with an 
artificial personality, and attaching thereto certain definite 
franchises and privileges, which, since the artificial person- 
ality is constructed, are described as rights. They are 

1 1 Kent's Comm. 3. 



THE NATION THE INSTITUTION OF RIGHTS. 105 

created by the state in its enactment, and have their ori- 
gin and limitation in positive law. Their accumulation in 
great monooolies, presumed to be chartered for the public 
advantage, is to be rigorously defined, and if not guarded 
may be an injury to the natural rights of the people. 
They are only the creation of law and exist always in 
subordination to the law of the public weal, but the 
strength, which resides in their assumption, by a legal 
fiction, of personality, is a significant illustration of the 
real ground of rights. 

There is a definition, the most prominent in the history 
of civil rights, in which they are described as the rights of 
persons and the rights of things. This had its source in 
Roman law, which defined rights as ad personam and ad 
rem^ and it had there a better justification than in later 
civilization, since in Roman law the definition of human- 
ity, as Hegel says, was impossible. ^ In Roman law, rights 
ad personam are not the rights of a person as such, but 
the riglits of a certain person or of a person in a certain 
status ; personality as distinct from slavery, is repre- 
sented as only a status or a condition. The phrase in 
which the distinction appears, remains as a reminiscence 
of the Roman conception, or is retained as a technical 
term or as a nice rhetorical antithesis. It denotes, says 
Christian, " by the former the rights of persons in public 
stations, and by the latter the rights of persons in private 
relations." ^ But since all rights are the rights of persons, 
and things can be only the objects of action, the merely 
verbal antithesis involves confusion and may become the 
source of constant error. 

The description of rights as existent in some formal 

Hegel, Philosophie des ReciSts, p. 23. 

1 Bl. Comm. 123. 

Now rights and obligations are ntanifesth the attributes of persons, not or 



106 THE NATION. 

system which the nation is to apply is unhistorical. Rights 
are represented thus as complete and beyond modification. 
They are the framework out of which man is to con- 
struct society, the house which is so built that one state 
may move out and another come in. They are the dry 
anatomy which a political spirit is to clothe with life. This 
can be justified only as the origin of the nation is defined 
in a formal law ; it is inconsistent with its organic being. 

The nation is the realization of rights. The foundation 
of rights is in the nature of man, but their positive deter- 
mination is in the civil and political organization. 

The content of rights is in personality ; the realization 
of rights is in the being of the nation as a moral organ- 
ism. 

There is for rights no positive existence apart from the 
nation. The imaginary state of nature in which rights 
are represented as existing in their completeness, apart 
from the civil and political being of society, is unreal, it is 
only the fiction in which man is stripped of the actual 
circumstance and relations of life, in order that he may be 
costumed in the theories and speculations of later schools. 
There is beyond the civil and political organization no 
right but might; there is no security, and rights which are 
primary, as of life and liberty and property, are neither 
acknowledged or affirmed. The absence of the rights of 
man is characteristic of his existence, in so far as the 
germ of the nation is undeveloped and its form undefined. 

There is in the nation the institution, not the creation 
of rights. Since their foundation is in the nature of man, 
and their affirmation is in the nation, and since no man 
can take that which is by nature his right, simply as a 

things, and to divide rights, as Blackstone, into the rights of persons and the 
rights of things, if by the latter words are meant rights not over in or to, but 
belonging to or inherent and vested in things, we have seen evinces either inac- 
curacy of thought, or is at best misapplication of language." — Keddies' In- 
qmrieSj etc., p. 171. 



THE NATION THE INSTITUTION OF RIGHTS. 107 

gift, they are formed and maintained in the nation only 
as the beino; of the nation has a divine origin and is itself 
a divine gift. There is, therefore, in the development of 
the nation the manifestation of the rights given of God to 
man. Thus,' in the representation of the nation as only 
an external organization, or as an economic association, 
there can be no just conception of the origin or subsistence 
of rights. Thus, also, they cannot be regarded as hav- 
ing their origin in law ; in law there is their assertion 
but not their creation, and in law there can never be the 
perfect measure or expression of them. In the course of 
the nation their recognition in law, in any moment, is nec- 
essarily incomplete, and is never a finality, but is always 
advancing to correspond to the life and the freedom they 
represent. 

Since the nation has its being in the realization of rights, 
the highest obligation of the nation is that rights be real. 
In the institution of rights there is the manifestation of 
the nature of man as it is made in the divine image. As 
tlie origin of the rights of man is in his creation in the 
divine image, so also is their realization in the nation the 
fulfillment of the divine will. As the realization of rights 
is in the vocation and the destination of the people, so 
also is the righteousness in which they are wrought the 
condition of the being of the people. The realization of 
the rights of humanity in the nation is the fulfillment of 
righteousness. It is in the being of the nation as a moral 
person that there is the realization of rights, and in this is 
the affirmation of righteousness on the earth, and therein 
also the nation, in its personality, can subsist only in the 
righteous name, and caa proceed only in the righteous 
Will of God. 



CHAPTER VII. 

THE NATION THE REALIZATION CF FREEDOM. 

The necessary being of the nation is in the realization 
of freedom ; that is, its end is to make freedom real, and 
its development is only as it does make freedom real. 

The freedom of the people subsists in the nation as a 
moral person. 

Freedom is the manifestation of personality. Man has in 
his nature impulses and the power of following them, and 
desires and the power of gratifying them ; but his being is 
not in these, and deeper than these and beyond these, there 
is a consciousness of an I — a person. In the assertion 'and 
the realization of this, and in the exclusion of all that is 
alien from this, alone is freedom. It is the realization in 
man, through his own self-determination, of his true be- 
ing. The law of freedom is the law which is laid in the 
being of personality. The act of freedom is a self-deter- 
minate act, the determination of personality.^ 

1 There is a common phrase in ethics, which asserts the existence of laif 
precedent to life — a law precedent to the divine being, or as the phrase is, in 
one shape, "the throne of justice is above the throne of God; we may appeal 
from the throne of God to the throne of justice." If there be the assertion of a 
aw as existent " in the beginning," those who postulate a law havmg a morai 
ontent as the Just, and those who postulate a law which exists only as a formula 
..'thought, — the necessary limitation of conception — may oppose each other 
out the bystander can scarcely question the result; the latter has a consistence 
which the former cannot claim, and the pure dialectic has the start of the ethic 

But the law which has for its substance the good or the right, is in the di. 
vine person, the being of God; it is the rill ot God. The assumption of 
precedent law is not necessary to the assertion of the immutability of the good 
as it is apparent in moral distinctions, for this immutability is in the immutable 
being, — the personal being of God ; and than it is manifest in the moral order 
of the worra, as the moral order is the realization of the will of God. The good 



THE NATION THE EEALIZATION OF FREEDOM. 109 

The assertion of personality is in the will. The will de- 
rives from personality its content. The self-determined 
will alone is free. The will defined in an abstract and 
formal conception, and divested of personality, and its sub- 
sistence in it, allows no freedom, and when thus divested 
of its content it is without freedom also. 

The action which is arbitrary is not free. It is the mere 
formal act of the will ; it proceeds only from the will, not 
from the conscious determination of personality, — that is, 
the whole, the real person, — and having no other source, 
it is only willfulness. This action, separated thus from its 
subsistence in personality, is mere force, and instead of 
implying force of character, it is force without character. 
It is a barren sceptre. It has no more dignity than the 
operation of a physical power in nature. The will in this 
conception may be as strong and as unbending as iron, but 
its quality is no better than iron. 

is maintained in the realization of a moral order by the divine will, and this in 
the relations of a moral order is the just. 

" The good is as little a law for the divine will (that is, God wills it because 
it is already in itself good) as it is a creation of the divine will (that is, that it 
first becomes the good, because and after that God has willed it), but it is even 
"in itself the original will of God, from eternity to eternity. The good, as the 
substance of the divine will, is something specific, distinct from the divine rea- 
son and the divine omnipotence; not less original than these: it springs orig- 
inally purely out of the will, but it springs not out of the abstract conception, 
(abstraktum) of the will (Kant's abstract conception of the principle, be a law 
unto thyself; or Fichte's abstract conception of pure self-activity); nor from the 
formal conception (formalism us) of the operations of the will (Hegel't develop- 
ment of the moral out of the (momente) incident of the operations of the will), 
but it springs out of the eternal positive (inhalte) content of the will. 

" The good is, to speak in a general way, nothing else than the substance of a 
person. Man can therefore endeavor to derive the conceptions which we recog- 
nize in the attributes of God, and the virtues of man from the original concep- 

on of personality. In the substance of personality there lies the spirituality 
vhich contends against losing itself in external objects and in sensual impulses, 
and of this alone and of nothing else, has the ethic of Kant and Fichte given a 
scientific representation ; in the substance of personality there lies further the 
unchangeableness of the will, that in relation to the moral order of the world is 
the just; in the substance of personality is the love that goes forth toward those 
who are persons; in the substance of personalit}'- there is the oneness of all these 
energies and qualities in the innermost centre — the person, and therewith its 
impenetrability by all that is external or strange or alien to it — its holiness '" 
►".Stahl's Philosophie des Rechts, vol. ii. sec. ^, pp. 85, 86. 



110 THE NATION. 

The action which springs immediately from impulse oi 
appetite is not free. The pursuance of a Mind instinct, or 
the subjection to a strong passion, is the negation of free- 
dom. Thus the animal is unfree. It is determined and 
limited by its animal nature. The desires and the emo- 
tions, the impulse and the passion of men, as separate from 
personality, are therefore to be apprehended as external 
to the will, and the immediate subjection to them is igno- 
ble, as the degradation of personality, and unworthy, as 
the negation of the true and real self in man ; there is in 
it the loss of freedom. Thus Shakespeare says : — 

"I'll never 
Be such a gosling to obey instinct, but staud, 
As if a man were author of himself 
And knew no other kin." 

The action which is merely unlimited and unrestrained 
is not free ; the power to do whatever one lists or pleases 
is not freedom. The most false representation of freedom 
is this apprehension of it in the absence of restraint. It 
is then identified with mere caprice. The freedom which 
in this assumption is called natural freedom is unreal. It 
is illustrated by the old words denoting the widest and the 
most unrestrained play of desire, " a boy's will is the 
wind's will." • But in that unceasing motion and that 
sweep of limitless fields there is no freedom. It is not 
until the boy has passed on to the life of a personality, 
realized in its conscious self-determination, that he is truly 
free. Yet it was only this false conception of freedom 
which appeared in the later phases of the French Revo- 
lution. Freedom was sought in the removal of all that 
was assumed as a limitation. It was to be attained in 
the erasure of the whole organization of society, and of 
all the institutions and associations of the past. The 
path of the revolution, in its principle, was not far from 
that of the cloister, and the ideal still was that which had 
been sought in the via negativa of the mystic. It oblit* 



THE NATION THE REALIZATION OF FREEDOM. Ill 

erated all that appeared beyond its immediate intent. 
The existing order was to be determined in the momen- 
tary action of the individual. It was not a freedom which 
presumed the existence of the nation in its organic and 
moral being, a freedom which had a moral content, but it 
was assumed to consist in the absence of all limitation and 
restraint. Then when all the institutions of the past were 
swept away, and no apparent barrier was before men to 
check their advance, and there was nothing in the wide 
blank of the horizon to debar them, there was a painful 
discovery that tliey were not yet free. It was the rejec- 
tion of the moral relations which subsist in the nation, and 
the striving after freedom in mere vacancy, that opened 
the way to any influence from without that might take 
possession of the empty domain. In the denial of all or- 
ganic and moral relations there arose everywhere the dis- 
trust and crimination of men, and there followed what 
was called the reign of terror, when those who never 
were bidden, came to the room all swept and garnished, 
and men became the slaves of fear and of dread, and the 
way was open to the entrance of an imperial power. 

The action which is simply momentary is not free. The 
will in its freedom has elements of continuity and identity, 
which subsist in personality and are reflected in character. 
It is not merely the capacity to vault hither and thither, 
and to pass and repass from the one side to the other. 
The power of choice certainly is involved in freedom, and 
therefore it is to be recognized as existent in it, and it is 
not to be obstructed nor confined by that which allows no 
room for individuality to act, and no sphere in which it 
may have its sweep ; but the choice in which freedom is 
realized is the choice which is in accordance with personal- 
ity, — it is the realization of personality. The active 
choice between good and evil in man is brought forward 
in the contradiction of his nature, and in the issue of the 
r^nflict of life, and it appears in his being influenced by a 



112 THE NATION. 

power against himself and by a presence alien to his true 
and real self ; and in this there is manifest, not the freedom 
of man, but the defect of freedom. The error in the pop- 
ular apprehension of freedom in the schools of theology, 
and as it goes out from them in politics, is in representing 
it as consisting only in a power of choice, only an empty 
formal possibility in the life of man, but having no de- 
terminate moral content. The freedom of man is not 
simply in this momentary choice, and the realization of 
freedom is not in the broader road opened before it and 
the wider scope of possibility in its action. It is not found 
in the larger alternative between right and wrong, or the 
longer balance with the more even play between them. 
It is not found in the perfect suspense between the oppo- 
site forces, and it is not won by the people that stand on 
neutral ground. On the contrary, in the higher freedom 
of man there is the less choice between the good and 
the evil, and there is the less possibility of a decision un- 
worthy of one's real and true self, that is an ignoble de- 
cision. 

When the will is represented as only in identity with 
the power of choice, which when thus emptied of all moral 
content is the merely willful, that is, the arbitrary, then 
the assertion of this power is not freedom, and the mainte- 
nance of this power is not among the rights of men. The 
nation is to realize the freedom of man, and to guard it in 
the institution of rights, but it is not in any conception to 
establish the wider province, and to open the more unlim- 
ited scope for this power to act, and to guard the exercise 
of it, and to remove all restrictions from its way, and to 
keep it from all hindrance and molestation, in the indef- 
inite sweep of its arbitrations. The freedom of the citizen 
is not defined in the power to turn a traitor, nor is all re- 
straint upon the power of turning to be forbidden. That 
people would not be the more free, in which the larger 
choice was left open to its soldiers to desert, and which 



THE NATION THE REALIZATION OF FREEDOM. 113 

made such action a principle of rights, as it must become 
if it be the rea' freedom of man ; but the people is the 
more free when there is in the spirit of its soldiers no 
possibility of desertion, and the soldier is the more free to 
whom even the su^-o^estion of such action does not come, 
who is beyond its suspicion, and who knows only and de- 
termines only to meet and fight the enemy. The soldier 
who even deliberates, or allows the choice to pass before 
him, is the less free — the more exposed to subjection to 
impulse and fear. This assertion of the mere power of 
choice is not freedom, and its maintenance is not among 
the rights of men, and its extension does not constitute the 
progress of the people. In the choice and the assertion 
of the right, man acts in accordance with his real and in- 
nermost being, his own true self, and with the exclusion 
of all that is alien as external to that being, but in the 
opposite, man chooses that which subverts personality and 
subjects him to evil, that which does not belong to his 
being, which comes out in the contradiction of his na- 
ture ; but in freedom and the realization of freedom there 
is no contradiction, — there is in it alone the act and the 
unfolding of the true being of man. 

Freedom is not attained in the negation, in which man 
without personality, as if all before was a blank, moment- 
arily determines whether to be this or that, whether to do 
or not to do. In the determination which is in the right, 
there is alone in the individual and the nation the realiza- 
tion of freedom and the attainment of the being and end 
of each 

The nation is the realization of the freedom of the people. 
The freedom of the people subsists in the being of the 
nation as a moral person. 

If the nation be regarded as only a formal organization, 
an exposition of a barren system of rights and a miscel- 
lany of institutions, then only a £:rmal freedom can be 
8 



114 THE NATION. 

predicated of it as also the postulate of a formal freedom 
has its sequence in an empty and formal conception of 
the nation. But the real freedom of the nation in which 
it works out its end as a power in history, the freedom in 
the attainment of the vocation of the people, in the mani- 
festation of its own character, in the strength and endur- 
ance of its own will in the divine will, in whose purpose 
is the development of history in the moral order of the 
world, — this freedom can have no ground in a merely 
formal conception. 

The defect in the popular definitions of the schools, of 
the freedom of the nation or political .freedom, is conse- 
quent on their proceeding from this formal conception, and 
while only a formal conception has been assumed, and a 
formal definition has been allowed, it is not singular that 
the latter has been, as Mr. Hurd calls it, the problem of 
publicists. Thus the subject which is central in politics 
and formative of its whole course, has obtained in this 
premise no clear definition. Dr. Lieber, in a treatise con- 
cerned exclusively with national and political freedom, 
represents it as " that liberty which results from the appli- 
cation of the general idea of freedom to the civil state of 
man." ^ In this reference to " the general idea of free- 
dom," the subject is left undefined, and one is sent in quest 
of the "general idea." And the freedom of the people in 
its organic and moral being, that is, national freedom, is 
avoided in these abstractions. It does not exist thus com- 
plete in an abstract form, which a people is then to adopt 

1 Lieber's Civil Liberty, etc., vol. i. p. 34. 

Dr. Lieber, in attaching so great weight to certai*" institutions of freedom, al- 
lows no corresponding weight to the fact that these institutions have their only 
ground in the organic unity of the people in the nation. This leads to the ap- 
plication of certain institutions of a certain type to all nations, and thus all are 
to be made to conform to an Anglican type. But while recognizing the worth of 
these institutions, in themselves, to civilization, the condition of freedom is 
the national spirit of the people, which will mould institutions in its own 
strong individuality. While the United States has in its history a lineal re- 
lation to some of these institutions, and they are an inheritance of inestima 
ble value, yet work is to be done in new conditions, and in a life which is neithei 
A.nglican nor Gallican 



THE NATION THE EEALIZATION OF FREEDOM. llo 

and apply by some mduction, and when thus apprehended 
it can result only in the construction of a formal system 
or a collocation of institutions. It would be as consistent 
to represent the freedom of the individual person, as the 
assumption and application of the " general idea." 

The fi'eedom of the people, or political freedom, subsists 
in the nation in its organic and moral unity. It is the 
self-determination of the people, in the nation, as a moral 
person. It is formed in the conscious life, and its process 
is in the conscious vocation of the organic people. ^ 

Freedom has, apart from the nation, no positive exist- 
ence. Thus among the vast populations of Asia, there is 
no political freedom, but only the natural freedom of man, 
and the term freedom can be applied to those peoples only 
negatively as denoting the absence of a positive system of 
slavery. Thus, also, in the loss or the destruction of the 
national unity, that is, the organic and moral being of the 

1 Milton's whole argument rests on the identity of political and moral freedom, 
and the utter rejection of any conception which does not presume this. He says 
of the formal representation, — " The way to freedom is without intricacies, 
without the introducement of new or absolute forms or terms, or exotic models, 
ideas that would eflfect nathing." — Milton's Worhs, ii. 127. It is " a real and 
substantial freedom, which is rather to be sought from within than from without, 
and whose existence depends not so much on the terror of the sword as on so- 
briety of conduct and integrity of li;e." — Works, i. 208. " Unless that liberty 
which is of such a kind as arms can neither procure nor take away, which alone 
Is the fruit of piety, of justice, of temperance, and tmadulterated virtue, shall 
have taken deep root in your minds and hearts, there will not be long wanting 
one who will snatch from you by treacheiy what you have acquired by arms ; 
tnless by the means of piety, not frothy and loquacious, but operative, un- 
adulterated and sincere, you clear the horizon of the mind from those mists of 
superstition which arise from the ignorance of true religion, you will always 
have those, who will bend your necks to the yoke, as if you were brutes, who 
notwithstanding all your triumphs, will put you up to the highest bidder, as if 
you were mere booty made in war ; and will find an exuberant source of wealth 
in your ignorance and superstition. You, therefore, who wish to be free, either 
instantly be wise, or as soon as possible cease to be fools; if you think slavery 
an intolerable evil, learn obedience to reason, and the government of yourselves; 
and finally bid adieu to your dissensions, your jealousies, your superstitions, 
your outrages, your lusts. Unless you will spare no pains to effect this, you 
must be judged unfit both by God and mankind to be intrusted with the pos- 
session of liberty and the administration of government, but will rather, like a 
nation in a state of pupilage, want some active and courageous guardian to un- 
dertake the management of your affairs." — Woi-ks, ii. 295. 



116 THE NATION. 

people, its freedom perishes although its external condition 
and its sphere of external circumstance, for the individual, 
may not at once be materially changed. The form and 
external institutions of society may remain as before in so 
far a^ individual action and individual pursuits are con 
cerned, but the freedom of the people expires with the 
national being. It was not in this form nor in these insti- 
tutions, and it cannot be perpetuated in them alone. The 
external structure of society in which the individual moved 
was not immediately subverted nor destroyed in the disso- 
lution of the national life of Greece and Rome, but their 
freedom, which was of their spirit, immediately perished. 

The freedom of the people, or politi^cal freedom, is formed 
in the self-determination of the people. This precludes all 
external constraint, since an action which is constrained 
by a power or influence external to the will, is not free. 
This precludes also the conduct of the people itself, from 
mere impulse or passion, for since these are external to 
the will, in so far as it is controlled by them, there is no 
freedom. The course which is the result of mere whim 
or willfulness, the caprice of men in its desultory play, 
is not of the freedom of the p,eople ; in it personality is 
overborne, and the very unity which is the condition of 
the freedom of the people is lost, and there appears the 
agitation of the popular tumult, but not the conscious 
order of the state. ^ 

The freedom of the people, or political freedom, involves 
the assertion of law. It subsists in the nation in its nor- 
mal being. There is in it, therefore, the assertion and the 
manifestation of law, but it has not therefore a formal 

1 Bluntschli says, " Natural freedom is the power to do whatever one likes. 
Moral freedom is the manifestation of the will, and the power to do what is be- 
coming to one's own nature and in accordance with the divine economy in tht 
world. Freedom in its political conception presumes the organization of rights, 
of which it is a part. It is the power and warranty protected and secured by 
the law to exercise a self-determined end." — Allgemeinen Siatsrechts^ yol 
U. p. 487. 



THE NATION THE EEALIZATION OF FKEEDOM. 117 

ground which would follow if the law was merely external 
and definitive only of a formal order. The law which b 
asserted m it, as the norm of its action, is the law in the 
foundation of its being and is realized in its being, — in its 
self-determination, as a moral person. There is thus in law 
and freedom an inner unity. In the limitations defined in 
law, there is, therefore, no bondage, but they become the 
evidence of the emancipation of man. This emancipation 
is not indeed in the institution of mere external limitations, 
which are devoid of all content and may be only obstruc- 
tions, nor in the mere limitations of formal laws, but in a 
life which is formed in moral relations, and the laws which 
are asserted are those which define and regulate those re- 
lations. Freedom, in the assertion of law, assumes re- 
straint and accepts obligations in the relations of an or- 
ganic and moral being, and in these there is no limitation 
in the sense of hindrance, or as the mere impediment to 
action. There is in them no barrier, but freedom is 
wrought through them. It is a divinity that doth hedge 
us in. The law in the being of personality, instead of 
the terminus of freedom, is its postulate. 

The freedom of the people, or political freedom, is the 
realization of the self-determination of the people in the 
nation as an ethical organism. There is in it the expres- 
sion of the self-determination that is the freedom of a per- 
son, in an order which is formed in moral relations. 
There is in it the assertion of the individual person. The 
order in which he is to act and to which he is to be sub- 
ject, is to correspond to his own inner being, — to accord 
with his own real and true self. The sphere in which he 
is to work must consist with his own aim and endeavor, 
It is thus that every polity, and all laws which are im-^ 
Uioral are destructive of freedom, as they are subversive of 
he true being of men, and are repressive, and hold the 
elements of tyranny. But in the increase of the freedom 
of the nation, its political order becomes always the more 



118 THE NATION. 

perfect expression of the moral being and longing of the 
individual person, and therefore of his own true and in- 
ner self. Then as the self-determination of the people is 
manifested in the nation, the individual person in his 
action attains in it his determination, and in his obedi- 
ence to it he is obeying his own true and inner self. 
There is in it the correspondence to his own being, and 
the embodiment of his own aim. That this attainment is 
at any moment imperfect, is because the individual and 
the nation have a life which for each is a development ; 
and then also the life of each is subject to the conditions 
of a moral conflict. But every polity which avoids this 
end and neglects to regard or to build upon it, or to strive 
constantly for its attainment, is itself inherently weak, and 
only increases the action of disturbing forces, and clogs 
and thwarts the course of the people, and delays, while it 
cannot prevent, its inevitable coming, in the development 
of the nation. 

The freedom of the people, or political freedom, presumes 
that the political order shall conform to the will of the po- 
litical people. It is not to be restricted by forms and insti- 
tutions which are alien from it, nor compressed into the cast 
of some exotic mould, and these limitations, while they 
impede the free course of the people, may induce a spirit 
not of law, but of legality, which may be the worst tyranny. 
It is not to be directed by the exclusive aim and interest 
of an individual or a family or a class, which are over but 
not of the nation, and in this there is the inception of a 
despotism, not the freedom of the people. 

The freedom of the people, or political freedom, pre- 
sumes also that the political order shall express the con- 
scious spirit of the people. It is to be open to the knowl- 
edge of the people. The policy and laws are not to be 
kept as the mystery of a craft, or the tradition of a caste, 
nor as the speciality of a class. The political design is 
act to be locked up as a state secret, nor to be conductea 



THE NATION THE REALIZATION OF FEEEDOM. 119 

by hidden bureaus. The laws are not to be withheld, as 
if written only in volumes where the people cannot have 
access to them, but the w^hole course and action of the 
state is to be open to the knowledge of the people, and its 
loyalty and its obedience is to be the assertion of a con- 
scious spirit. 

The realization of the freedom of the nation^ or political 
freedom^ is in rights. Freedom embodies itself in rights, 
as in rights also there is the manifestation of personality. 
The institution of positive rights defines in the nation the 
sphere of a realized freedom. There is in freedom the 
right which is fundamental in the rights of man ; freedom 
is the eternal right of a man to be himself. It is not the 
exclusive claim of an individual or a family or a class, but 
of man, as the nation has no lower nor special end, but a 
universal end in the rights of man. 

The freedom of the people as it becomes determinate 
establishes itself in rights, and in its advance it raises bar- 
riers in the institution of rights against alien forces and 
evil influences, the principalities and powers that hinder 
and thwart it. It is only in rights that freedom is actual- 
ized in the nation ; it is only in positive rights that it 
gains a sure foothold in its progress ; they alone afford the 
requisite strength and security for it. In rights freedom 
is guarded against denial, fortified against fraud, shielded 
against conspiracy and surprise and sudden overthrow. 
In the same measure in which freedom fails to establish 
itself in rights, whose institution is in law, it is liable to the 
whim and the caprice of men, and the highest interest is 
left to the adjustment of changing circumstance. This 
secure institution and organization of freedom in positive 
rights is the work of the statesman. It demands the more 
comprehensive political sagacity. Freedom does not gain 
much while it is held in an ideal conception, and is lefl to 
the page^ of scholars, or the rhymes of poets, or the voices 



120 THE NATION. 

of orators. These are not laws, and the condition of every 
advance in freedom is its assertion in laws and its organiza- 
tion in rights. It has in their strong guaranties alone pro- 
tection against selfish interests and private aims. 

The identity of freedom and of rights in the nation is 
implied in their subsistence in personality, and thus we 
cannot conceive of the actual existence of an individual 
in a civil or political relation, or of a nation in which there 
is freedom but no rights.^ The second clause of the thir- 
teenth article of the Constitution is not superfluous, and 
the nation necessarily can only enforce the declaration of 
freedom by the institution and the maintenance, through 
laws, of rights. To grant freedom but no rights would 
be fit subject for the fool who is always about the king's 
court in Shakespeare, and fit work only for some king's 
jester. 

The freedom of the people never attains its perfect ex- 
pression in the organization of rights. It may strive un- 
ceasingly toward this end, and with toil and energy it 
may shape them in their clearness and strength, and yet in 
its spirit it is always beyond them. They can thus, in no 
moment in the history of a people, be regarded as having 
obtained their ultimate form, nor can the people have in 
them the perfect satisfaction of its aim. Its endeavor is 
always to mould the organization of rights toward the ex- 
pression of its ampler and fairer freedom. 

As the freedom of the people is established in rights, 
these rights, through laws, may be embodied in institu- 
tions. There may thus often be traced in the form and 
growth of these institutions the progress of rights and the 
line of their advancement. These institutions often have 
thus of themselves an historical increase, and are wrought 
into shape and use in the history of the people. They are 

1 " Freedom in its civil and political conception, can never be separated frons 
the process of rights which is its ground and its support."" — Bluntscbli's Allgem, 
Stattrechts, vol. ii. p. 488. 



THE NATION THE REALIZATION OF FREEDOM. 121 

guaranties in wliick rights are fortified and stand as tlie 
barriers against the betrayal of freedom from within, or its 
invasion from without. They endure against the assump- 
tions of arbitrary power, and in them, as in a retreat, free- 
dom may hold out through evil days of apathy, and is 
secure against overthrow alike from the agitation of the 
many and the conspiracy of the few. The illustration of 
these institutions is, for instance, in the organization and 
administration of the township ; in the trial by jury ; in 
the office of the justice of the peace ; in the common law. 
These institutions have often also their expression, while 
their exact form is of slight significance, in some sturdy 
maxim of the people, some " words that have hands and 
feet," some sentence in whose clear light the way is seen 
through dangerous channels, and whose signal is the alarm 
of freedom. An illustration of this is in the phrase which 
denotes the right to the sanctity of home, — " every man'a 
house is his castle." 

There are certain conceptions of political freedom which, 
in their error and their defect from its necessary concep- 
tion, can tend only to thwart or delay its progress. 

It is represented as in itself a negation, and as appear- 
ing in the check or balance of opposing forces, or in the 
restriction of adverse power. This has its postulate in the 
assumption that power is in itself essentially dangerous in 
the state, and that freedom is manifested in the construc- 
tion of certain other powers to stand against the current 
and keep it back ; and these, then, since danger is inherent 
in power, require the building of others to offset them, and 
so the erection is to go on indefinitely, and the degree of 
freedom is graduated by the successive and alternative re- 
strictions of power. It is indeed true that freedom, in the 
conditions ©f history, presumes an unceasing conflict, and 
must overcome adverse elements, and at every advance 
intrench itself in positive rights. But freedom is in itself 



122 THE NATION. 

a determinate power, and of itself advancing ; rights only 
denote in their institution its line of march. And checks 
and guaranties have onlv the strength \vhich they may 
obtain from the power which shapes and holds the check, 
and asserts and maintains the guaranty. Freedom is no 
negation as is assumed in this conception ; it is not found 
in the construction of the most exact and formal balance 
of opposing interests or classes or factions. The balance 
in itself could effect nothing, and instead of the living 
unity, which is the condition of freedom, it implies the 
disintegration of society which it regards as only the com- 
bination of certain separate interests which are to be pitted 
against each other. Freedom is not in this negation, but 
in the positive determination of the people, and conversely 
the weakness which appears in the decay of national 
power is in the loss of freedom, when the people can 
assert no rights, and even in its spirit can apprehend none. 
Freedom is alone the power of the people in its organic 
and moral His; it is the might of the living people; it 
may break in one moment the fetters which centuries of 
oppression have forged, and throw down prison walls in 
which evil dominations have labored to immure the spirit 
of man. 

Political freedom is represented also as existent only as 
some spectral ideal, some remote abstraction. It is de- 
scribed as some imaginary figure, if it have shape or form, 
which exists, in its perfectness, in isolation from the body 
politic, and distant from the organization of the nation. 
But the ideal is not the contradiction of the real ; it is in 
identity with it, and is striving always toward a more per- 
fect embodiment in it ; the ideal is not the unreal. There 
are sometimes those who, in the guise of a specious devo- 
tion to freedom, are ready to consent to the dismember- 
ment of the nation, and for some spectral and abstract 
presentation of freedom would conspire for the destruction 



THE NATION THE REALIZATION OF FREEDOM. 123 

of the whole organization in which it has toiled toward its 
realization, however imperfect its advance. This is that 
blind fanaticism, that weak egoism, which is the unreason 
of the state. These visionaries cannot build again in the 
ruins it was so easy to make ; it is only destructive forces 
that work thus swiftly ; freedom will not follow at their 
behest, nor go and return at their beckoning, nor enter 
the abodes to which they invite it, and it is only with 
long and patient toil and sacrifice that the organization is 
won by the people in which it dwells. 

Political freedom is represented as a power formed in 
external limitations, or as construed in the formal relations 
of the individual and the nation. Mr. Emerson says it 
is the largest liberty compatible with the liberty of every 
other man. But freedom is not described in this ex- 
ternal limitation, nor is the freedom of one the restriction 
of the freedom of another. This confounds freedom with 
arbitrariness, and it is only willfulness that is incompatible. 
Freedom is not thus attained through infinite individual 
antagonisms. The largest freedom in each is consistent 
with the same in all. This conception empties freedom of 
all moral content, and it could be constructive only of a 
formal, not a real freedom. It could not be the postulate 
of the fr^eedom of the people in its organic and moral be- 
ing and relations in history. The freedom of one is no 
limitation to the freedom of another, but an aid toward his 
emancipation. 

Political freedom is represented as something which 
may be bestowed or withheld by some external power. It 
is apprehended as the circumstance of a formal law, the 
consequent in a formal oraer ; it is described as the boon 
of some priest or emperor, some preacher or convention. 
It is true that a power on earth may acknowledge or 
deny it, and may do much to aid its growth or to crusli it 



12-4 THE NATION. 

in the spirits of men, but it belongs to none, neither priest, 
nor preacher, nor president, nor congress, nor emperor 
nor armies, to bestow it. It is not received as a gift ; it 
belongs to the spirit of man, and therefore is only of God ; 
and only as the personality of man has its subsistence in 
God, is emancipation wrought in it ; and only as the nation 
is a moral person, in the crises of its deliverance, is He 
recognized as its deliverer. 

There is a representation of the origin and nature of 
political freedom which, as affecting the conception of the 
moral being of the nation, involves the naost false of polit- 
ical sophistries. It is the theory which is built upon the 
postulate that man possesses a real freedom in a condi- 
tion precedent to the nation, and that he then surrenders 
a certain part of it upon his entrance into it. Freedom is 
represented as existent in this condition which is prece- 
dent to society, in its perfec^^ess, and as diminished when 
man enters society, and to that extent he suffers a depri- 
vation of it in consideration of certain other advantages 
which are secured to him in its stead. Blackstone says, 
" Every man, when he enters into society, gives up a part 
of his natural hberty, as the price of so valuable a pur- 
chase." ^ This part is regarded as surrendered in order 
to secure the residue, or as exchanged for certain other 
advantages, held at an equal valuation. 

This representation of the origin and nature of freedom 
proceeds on the assumption of the social contract. It is 
implied, also, in the position of Mr. Emerson, which was 
also the position of Kant, when the liberty of one person 
in society is the possible limitation or restriction of the lib- 
erty of another person. 

But this condition in which man is represented as exist- 
ing anterior or exterior to society, and in which freedom is 
conceived as flourishing, has no reality. It is a fiction, and 

1 1 Bl. Comm. 125. 



THE NATION THE REALIZATION OF FEEEDOM. 125 

is only a repetition of tlie picture sketched so many times, 
and for so many uses, in the imagination of political theo- 
rists. In the actual condition of man, in so far as he is 
withdrawn from the organization of the state, there is no 
freedom. The records of the actual condition are of a 
life in which man is most of all a slave, and a slave to the 
lowest and meanest wants. He seems the subject of na- 
ture, and not one who is to assert dominion over it. It is 
a stage of abject dependence. There is no freedom, and 
the recognition of no rights, but each is exposed to the 
open wrongs of every enemy. There is no security for 
life, or liberty, or property. The freedom, then, which man 
is supposed to barter away in a certain part, upon entering 
society, in order to keep the remainder, has no existence. 
It is an imaginary possession which then afterwards, by 
an imaginary transfer, is conveyed to the state. The prop- 
osition falls with the fiction of the social contract in which 
it has its premise. 

It bears also the conception of private property into the 
state, and makes freedom itself a concern of formal trans- 
fer and exchange. It contradicts the necessary concep- 
tion of freedom, which is no longer a living and moral 
power, but apprehended as something which the owner 
can parcel out and traffic in ; and it is by trade in freedom 
that man is represented as entering the state, and he not 
only buys but sells out. 

To this there are also the same objections as to the so- 
cial contract ; and men do not from a precedent condition 
enter the state voluntarily, nor with specifications in this 
style. It contradicts also the necessary conception of 
freedom as involving law, when it is thus represented, for 
the nation is the sphere of law. It could then also, if it 
Tere an actual occurrence, result only in a formal free- 
dom, since the amount which is retained in the state 
would have its formal reductiot in the amount of the 



126 THE NATION. 

entrance fee, which is the condition of the purchase of 
exchange. 

This proposition is inconsistent also with the common 
language of men, and there is scarcely any fact of deeper 
significance, or capable of wider illustration, than that 
which makes a synonym of citizen and freeman. 

This proposition implies also a conception of natural 
freedom which is not a real freedom, but the arbitrari- 
ness of the individual, and the freedom of the whole is 
then only in the limitation of the arbitrariness of each. 

The contrast to this false conception of freedom, was 
given in words worthy of an inaugural, in the begin- 
ning of the history of the nation, by a governor of one of 
the early commonwealths, — " There is a twofold liberty, 
natural — I mean as our nature is now corrupt — and 
civil or federal. The first is common to man with beasts 
and other creatures. By this man, as he stands in relation 
to man, simply hath liberty to do what he lists ; it is a lib- 
erty to evil as well as to good. This liberty is incompati- 
ble and inconsistent with authority. The exercise and 
maintaining of this liberty makes men grow more evil, and 
in time be worse than brute beasts : ' omnes sumus licentia 
deteriores.' This is that great enemy of truth and peace, 
that wild beast, which all the ordinances of God are bent 
against to restrain and subdue it. The other kind of lib- 
erty I call civil or federal ; it may also be termed moral, in 
reference to the covenant between God and man, in the 
moral law, and the political covenants and constitutions 
amongst men themselves. This liberty is the proper end 
and object of authority, and cannot subsist without it ; and 
it is a liberty to that only which is good, just, and honest. 
This liberty you are to stand for not only with the hazard 
of your goods, but of your lives if need be. Whatsoever 
crosseth this is not authority but a distemper thereof. This 
Mberty is maintained and exercised in a way of subjection 



THE NATION THE REALIZATION OF FREEDOM. 127 

to authority ; it is of the same kind of liberty wherewith 
Christ hath made us free." ^ 

The great epochs in the lives of nations in the modern 
world, have been the realization of the freedom of man. 
It has been said that what the German Reformation whis- 
pered in the closet, the French Revolution shouted on the 
house-tops, that man should be free ; and the end of the 
American War was the assertion that the nation in its 
conscious spirit is the reaUzation of freedom, and that in 
the freedom of humanity the nation has its conquest and its 
end. In the nation freedom is real, and as freedom has 
its subsistence in the nation, so also in slavery is the re- 
sistance to the being of the nation. The nation and slav- 
ery cannot abide in one house, but at last the one or the 
other must be driven out. The nation must overcome and 
destroy slavery, or at last be destroyed by it. There is in 
history the evidence of this, and as it appears in the an- 
cient and in the modern world, — in the fall of Rome and 
the uprising of America. 

The antagonism with slavery is in the being of the na- 
tion. For as the nation is a moral person, and personality 
is realized in freedom, slavery is its necessary antagonist, 
and as it is the realization of rights, and in its universal 
aim of the rights of humanity, slavery with the denial of 
these rights and with the consequent degradation of hu- 
manity, is its immediate antagonist. 

There is always a tendency in those withdrawn from the 
battle, and its " confused noise and garments rolled in 
blood," to bear its issues into some ideal and abstract sphere. 
Thus the war is represented as the immediate conflict of 
the antagonistic ideas, — freedom and slavery. The reality 
is other than this ; the hosts are mustered in no intellectual 
arena, and the forces called into its field are other than 
spectral ideas. This tendency to resolve history into the 

1 Winthrop's Journal, vol. li. p. 13. 



128 THE NATION. 

conflict and progress of abstract ideas, or the development 
of what is called an intellectual conception, can apprehend 
nothing of the real passion of history. It knows not 
what, with so deep significance, is called the burden of 
history. It enters not into the travail of time, it discern? 
not the presence of a living Person in the judgments which 
are the crises of the world. It comprehends only some 
intellectual conflict in the issue of necessary laws, but 
not the strife of a living humanity. The process of a 
legal formula, the evolution of a logical sequence, the su- 
premacy of abstract ideas, this has nothing to compensate 
for the agony and the suffering and the sacrifice of the 
actual battle, and it discerns not the real glory of the de- 
liverance of humanity, the real triumph borne through 
but over death. There was in the war, in the issue which 
came upon us, " even upon us," and in the sacrifice of those 
who were called, the battle of the nation for its very being, 
and it was the nation which slavery met in mortal strife. 
The inevitable conflict was of slavery with the life of the 
nation. 

There is no vague rhetoric, but a deep truth in the 
words, — "liberty and union, now and forever, one and 
inseparable." They are worthy to live upon the lips of 
the people, for there can be no union without freedom, 
"jnce slavery has its necessary result in the dissolution of 
the being of the nation, and there can be no freedom with- 
out union, for it is only in the being of the nation that 
freedom becomes real. 



CHAPTER VIII. 

THE SOVEREIGNTY OF THE NATION. 

Tjie freedom of the nation has its correlate in the sov- 
ereignty of the nation. Pohtical sovereignty is the asser- 
tion of the self-determinate will of the organic people, and 
in this there is the manifestation of its freedom. It is in 
and through the determination of its sovereignty that the 
order of the nation is constituted and maintained.^ 

The existence of the sovereignty of the nation, or polit- 
ical sovereignty, is indicated by certain signs or notes 
which are universal : these are, independence, authority, 
supremacy, unity, and majesty. 

The sovereignty of the nation, or political sovereignty, 
implies independence ; it is subject to no external control, 
but its action is in correspondence with its own determina- 
tion. It implies authority ; it has the strength inherent in 
its own determination to assert and maintain it. It implies 
supremacy ; this does not presume the presence of other 
powers which are inferior, but it is itself ultimate and can 
be subordinate to none ; it is suprema potestas. It im- 
plies unity ; this belongs to the necessary conception of 
the will from which sovereignty proceeds, and in the will 

1 The necessary correlation of sovereignty and freedom was expressed in the 
common illustration of the old Protestant theologians, — "Liberum et volunta- 
rium sunt synonymia, ac voluntatem non liberam dicere, est perinde ac si quis 
dicere velit, calidum absque calore." Hegel has a verj'- beautiful statement of 
the proposition {Philosophie des Hechis, pp. 20-60). " Denn das frei ist der Wille. 
Wille ohne freiheit ist ein leeres Wort." — Ibi^l p. 23. Stahl says, "Desswegen 
fallen auch Freiheit und "Wille in ihrem urbegriflF vollig zusammen, der Wille 
ist frei, und es ist nichts Anderes, frei als nur der Wille." — Philotcphie det 
Bechtt, vol. ii. sec 1, p. 116. 
9 



180 THE NATION. 

alone, in which there is the highest and essential unity, is 
the postulate of sovereignty ; the presence, thus, of sep- 
arate supreme powers, to which equal obedience is to be 
rendered, involves a moral contradiction. It is character- 
ized by an inherent majesty ; it is a majesty which manifests 
itself in all the symbols of the state ; it is not jsimply the 
dignity of noble action, but it is the conscious possession 
of powers and obligations, on which depend the highest 
issues in the history of humanity. This has had its ex- 
pression always in the historical nations, appearing in the 
purpose and action of the people in its higher national de- 
velopment.^ 

These are the indices by which the presence of political 
sovereignty is indicated, and in them there is its external 
manifestation. There are in its content also certain ca- 
pacities. 

It is inalienable ; the state cannot transfer it to another 
nor divest itself of it, except that in the act itself its own 
existence and its own freedom terminates. 

It is indivisible ; a divisive sovereignty is a contradiction 
of that supremacy which is implied in its necessary concep- 
tion, and inconsistent with its subsistence in the organic 
will. * 

It is indefeasable ; ^ it cannot, through legal forms and 
legists' devices, be annulled and avoided, nor can it be 
voluntarily abdicated to be voluntarily resumed, but in- 
volves a continuity of power and action. 

It is irresponsible to any external authority; there is 

1 The peoples which were made subject to Eome, were thereby divested of a 
separate sovereignty, and to all terms made with them, the Eomans added, — 
'*Imperium majestatemque populi Romani, conservato sine donomalo. — Livy, 
bk. 38, sec. 2. 

" Majestas est amplitudo ac dignitas civitatis. Is earn minuit, qui exercitum 
hostibus populi Romani tradidit, — minuit is, qui per vim multitudinis, rem ad 
seditionera vocavit. — Cicero, De Oratore, bk. ii. sec. 38. 

2 It is incapabls by any juggle based upon legal analogies, of being defeated 
or abrogated. In the expression of James Wilson, " sovereignty is and remauy 
in the people." — Jamison's Constitutional Convention, p. 20. 



THE SOVEREIGNTY OF THE NATION* 131 

none on earth over it to whom it has to justify its course, 
or in whose conclusion it has to abide. 

It is comprehensive of the whole political order ; it acts 
in its determination as organic through the whole political 
body, and its authority is conterminus with the whole ; it 
works through all the members, and in all the offices and 
all the organs of the state. 

The sovereignty of the nation, or political sovereignty, 
primarily presumes the power in the political people to de- 
termine the form of its own political life. This cannot be 
imposed upon it from without. It cannot be referred to 
the dictation of any power over and separate from the na- 
tion, as some imperator. It cannot be restricted to certain 
special formulas, and the nation is not to be compelled to 
shape its order and organization after some theory and pre- 
conception of state forms which may be alien from it, and 
thwart the purpose or defeat the hope of the people. The 
oppression of a mere form or system in politics, may be- 
come the extremest tyranny, and far more crushing than 
an imperial power ; for the will of the solitary tyrant can- 
not have so universal a sw^ay, and there is always hope of 
change, but the tyranny of a form or a system of itself 
precludes change, and prevents progress, while it outlives 
men and generations. In its own sovereignty and in its 
own free spirit, the political people is to mould its own po- 
litical life, and to embody in it its own ideal, and to appre- 
hend in it its own aim. 

There have been certain theories, which have only a 
formal and historical interest, as to the residence of the 
sovereignty of the nation in its normal process. These 
assume the identity of its sovereignty with a certain form, 
Tor which then a universahty is claimed, and in their con- 
elusion, they have become the assertion of a' sovereignty 
external to and against the nation, which in any form, 
whether of an individual or a system, is the very defini« 
tion of despotism. Their interest is merely illustrative. 



132 THE NATION. 

It is said that the sovereignty is inherent in a family oi 
a certain number of families constituting the special aristo- 
cratical or regal organization, or caste, whom the possession 
of certain qualities or some circumstance may at the out« 
set have designated, and thereafter it is to remain contin- 
uous in them by the necessary and organic law of the state. 

This is the contradiction of the real sovereignty of the 
nation and its freedom, and is the assertion not of a sov- 
ereignty in and of the nation, but a sovereignty external to 
it. It is this which has dragged the people to war after war 
to decide a disputed succession, where the whole was em- 
broiled with individual claims and family divisions. There 
is no family or number of families which have an original 
and indefeasable right to govern. It is not subsistent in 
the ancestry of a family, or a tribe, or a race, but contin- 
ues only in the nation. It belongs to no individual or 
family save only as they are invested with its exercise of 
and by the nation. The right of government, which is 
alone of divine right, the right in the nation as a moral 
person, is of no uncertain succession and of no transient 
tenure. It is not the exclusive heritage of a family, and 
is not transmitted in the entail of its estates. " The pat- 
rimonial doctrine of the state," says Bluntschli, " which 
regards it as the property of the prince, and therefore as- 
cribes sovereignty only to him, and the absolutist doctrine 
of the state which identifies it with the individual ruler, 
both forget that all the might of the prince is only the 
combined might of the people, and that the people and 
the nation as the organization of rights remain, although 
princes and dynasties change and perish.'*^ The recent 
justification of this proposition has been in some represen- 
tative principle, as for instance the sovereignty is regarded 
as representative of the unity of the nation, — Coleridge 
>r of the permanence of the family in the nation, — Mau 
nee ; or of the personality of the nation, — Hegel. 

1 Allgem Statsrechts, vol. ii. p. 11. 



THE SOVEREIGNTY OF THE NATION. 133 

It is said that the sovereignty of the nation is resident 
in certain abstract ideas or principles, as justice or reason. 
This has been assumed by publicists who have sought thus 
to modify the conception of popular sovereignty. Koyer 
Collard gave a definite statement to the theory : " There 
is an individual and a moral element in society. To make 
the majority of individuals sovereign, is popular sove- 
reignty. When, with or without their consent, this blind 
strong sovereignty passes under the control of an individ- 
ual or a class, without changing its character, it becomes 
a wiser and more temperate authority, but it is yet rude 
force, and remains always such, and becomes the root of 
absolute power and privileges. If, on the contrary, soci- 
ety be founded on the moral element, that is, on justice, 
then is justice sovereign, for justice is the law of rights." 

This assertion of sovereignty as existent in an abstract 
principle or law, whatever its quality, as justice, or reason, 
or love, is illustrative of the tendency to convey the whole 
subject of politics into a realm of mere abstractions, and 
to merge the state into a formal idealism. The nation has 
certainly in justice, the law which is implied in its being 
as a moral person, and the condition of its being, and must 
conform to the reason of things, but the nation is itself an 
organic being, and invested with actual powers. Sove- 
•eignty is existent in the nation only as it is an organic 
and moral person, and in it and through it, justice is as- 
serted and realized in a moral order. 

This proposition is the assertion of a specious and ab- 
stract ideal, and becomes the substitution of a law or a 
system for the determination of the organic will. It .s 
inconsequent, since an abstract conception, however high, 
which is thus asserted, can have no real strength. It is 
moreover perilous, since it avoids the foundation in an 
organic being, of the organic and moral relations of the 
nation. It creates a tendency tc regard with indifference 
the real life and conflict of the nation, in comparison with 



134 THE NATION. 

the barren conceptions of the idealist, and to consent, on 
the pretense of an abstract reason or justice, to its destruc- 
tion and to conspire with its dismemberment. 

This proposition is also sometimes connected with the 
assumption of popular sovereignty in its lowest and crudest 
form; — in disregard of the being and government of the 
whole, — the assertion of what is represented as the re- 
served sovereignty of the people, is assumed by some in- 
dividual, on the ground of his subjective conception of 
justice, which is exalted in this unlimited egoism. This 
was the attitude of those who regarded the battle for the 
nation and its unity and authority, at least with indiffer- 
ence, and as devoid of moral content, until it should be- 
come an immediate war against slavery. 

It is said that the sovereignty inheres in the people sim- 
ply as the collective people, in a certain locality. This is 
the premise in certain phases of the preceding proposition, 
and, as in each of them., in its ascribing sovereignty to the 
collective mass in a certain locality, it is the assertion of a 
sovereignty apart from the organic people. 

This proposition, as before stated, postulates the power 
of the will of the people in its organic unity, and ascribes 
it to the inorganic mass. This formless crowd is destitute 
of the consciousness of unity which is implied in tlie will 
and is the condition of sovereignty. The state is resolved 
into its atomy. There is no ground for the continuity 
which is presumed in government and in law, and as 
sovereignty is apprehended as existent in the momentary 
action of the multitude, then in some momentary change 
the authority in government and law expires. As sover- 
eignty is represented as resident in a mass of individuals 
who may coexist in any locality, and as determined by 
their momentary action, the conception of the whole is 
precluded, and any section, or faction, or sect, may with 
h'aw if it have the momentary strength. 

The proposition fails, also, because it cannot make clear 



THE SOVEEEIGNTY OF THE NATION. 135 

what the will of the many is, nor by what law its sove- 
reignty or its reserved sovereignty is to be ascertained, nor 
how it is to be exercised. The existence of a law, giving 
authority to a political majority, cannot be assumed in the 
multitude, since the proposition places before us only a 
collection of individuals, an inorganic mass, in whom 
there is no consciousness of a common political principle, 
nor of the authority of a common political law. It is, as 
before, the assumption of the mob and not of the people. 

These theories are the assertion of a sovereignty, ex- 
ternal to the nation, not in it nor of it, and identical only 
with a formal organization. 

The sovereignty is of the organic people, constituted as a 
nation. It has its condition in the consciousness of the 
people, and it is the manifestation of the nation in its 
moral personality, and therefore, as subsistent in person- 
ality, it is from God; — it is from God and of the people. 

The form and the circumstance of sovereignty in the 
beginning of the historical life of the people, are as mani- 
fold as the incidents of the individual existence. But in 
whatever form, and however slow the development of its 
power, the sovereignty subsists in the organic people, who 
in the consciousness of their unity and order form the 
nation. 

The sovereignty has not its ground in the empty con- 
ception of the people with no conscious unity nor vocation 
in history. There is no conception of sovereignty, and 
none of the state, attaching to this mass. The numerical 
accumulation of men by no multiplication could attain to 
the sovereignty of the organic people. The sovereignty 
whose normal expression is law, and whose realization is 
freedom and order, is not in the multitude, nor in the 
momentary action of the multitud?,^ but in the will of the 

1 When Rousseau asserts an absolute sovereignty as resident in the momen- 
ttuy volition of the individual, and regards it as always justified by the act it- 



136 THE NATION. 

organic people ; it is the majesty of a people, the sov 
ereignty of a nation. 

The sovereignty of the nation is the original powei 
through whose self-determinate action the political order is 
established, and in it all the other powers subsist and from 
it they proceed. It is not merely the supreme power, in 
respect to which others are subordinate, but it is the origi- 
nal power which determines all others. Its affirmation is 
the supreme law. 

The sovereignty of the nation has an external and an 
internal manifestation. The external sovereignty is man- 
ifest in its independence of, and in its relation with, other 
nations. It is its own right to be and to be itself; it 
exists as a power on the earth, with other powers, equal 
and self-subsistent. In its external sovereignty the nation 
is manifest as a power in the historical order of the world. 
It is its highest being ; it is conscious of the authority 
with which it is invested, and the obligations in which it is 
involved, but it recognizes no human control, and acknowl- 
edges none nearer than very God, none over it but only 
God. 

The internal sovereignty is manifest in its assertion in 
its self-determinate action, of its political order and organ- 
ization. It ordains its constitution and laws, and pre- 
scribes its political course. As all the powers of the 
nation, as an organic whole, proceed from and in conform- 
ance to its sovereignty, so its constitution and its laws de- 
fine the order and administration of the whole. 

self, in setting aside the whole existing organization, and renouncing obedience 
to the whole existing authority, and repudiating all obligation which has its 
Bource in a past action, it contravenes the necessary conception, both of freedonj 
and sovereignty. The will is emptied of all moral content, and apprehended as 
identical only with a transitional action — the immediate power of choice. 

The will in this conception is not sovereign and is not free, when its whol« 
determination is construed in a momentarj^ action, and its freedom is exhausted 
In the play of caprice. Thus, also, the repudiation of past national obligatioiw 
has itu precedent in the denial of the being of the nation in its continuity. 



THE SOVEREIGNTY OF THE NATION. 137 

The sovereignty of the nation in its determinate form 
is law. Law, in its political sense, is the formal assertion 
of the will of the political people. The common defini- 
tion is thus, a rule of action made obligatory by the state 
upon all who are subject to its authority. It is the formal 
affirmation of the will of the people as regulative of the 
action of the whole in its civil and its political process. ^ 

The ground of law is not formal nor abstract. It is the 
affirmation of the will of the people, and therefore conse- 
quent from no empty conception of the will. It is the will 
of the people in the nation, as organic and moral. It is 
the formal expression of the purpose of the nation, but it 
is none the less the continuous purpose which is implied 
in its being. The conception of justice, the reason and 
law of right is implicit in the nation as a moral person. It 
is in the will in its sovereignty and the realization of its 
freedom, and therefore all willful and arbitrary action is 
in its nature lawless. The law is laid in the foundation of 
the being of the nation. It is then the assertion of justice, 
which is the fountain of all law, not as the illusion of vis- 
ionaries, nor as the scheme of theorists, nor as the device 
of legislators, nor as the compromise of interests, nor as 
the trade of parties, but as implied in the being of the na- 
tion in its necessary constitution, and the realization of its 
being. 

Law, in its political determination, has certain charac- 
teristics which are necessarily presumed. There are, in 

1 Rome, through all the successive periods in her history, represented as the 
source of law, the "majestas populi Romani," and asserted as the law, the 
"voluntas populi Romani." 

" The will of the state, indicated in some form of expression, is the law, and 
no natural rule which may exist forms a part of the law, unless identified with 
the will of the state so indicated. What the state wills is the coterminous meas- 
ure of law; no preexisting rule is the measure of that will." — Hurd's Law of 
Freedom, etc. vol. i. p. 4. 

"Law is the direct or indirect, explicit or implied, real c" supposed, positive 
K acquiesced in, expression of iae will of human society represented in the 
■Ute ; or it is the public will of a part of hulnan society constituted into a state '' 
- Lieber's Political Ethics, vol. i. p. 98. 



138 THE NATION. 

the distinction of laws with reference to their object, gen- 
eral and special laws, but there are certain elements im 
plied in all law in the civil and political order.^ 

The law presumes the being of the moral person from 
whom it proceeds : it presumes a consonance with reason 
and justice. It cannot contravene the nature of things, 
this would involve the unreason of the state ; an incon- 
gruous law is inoperative.2 

1 The definition, which is most prominent in the history of law, is that 
which, after the Roman law, defines the provinces of public law and private 
law. The distinction of these departments, as given in the Digest, would serv«» 
as the definition of the nation and the commonwealth, — the political and the 
civil order. "Hujus studii (juris) duge sunt positiones; publicum et privatum. 
Publicum jus est quod ad statum rei Romanss spectat; privatum quod ad singu- 
lorum utilitatem." — Dig. lib. 1, tit. 1, sec. 2. But with the apprehension of 
society onl}' in its civil relations, that is, as the commonwealth, these boundaries, 
in fact and then in law, became obliterated, and the conception which underlies 
their distinction was lost: the division has been held by later writers vaguely 
and again not inconsistently rejected by some, and its reason denied. 

The Roman juridical writers thus regarded public law, in the imperfect de- 
velopment of this distinction, as inclusive of criminal law. Savigny, Heut Rom. 
Redd. bk. i. ch. 2. Austin rejects the distinction, but his definition of public 
law is worth noting: " Public law, in its strict and definite significance, is con- 
fined to that portion of law which is concerned with political conditions; that is 
to say, with the powers, rights, duties, capacities, and incapacities, which are 
peculiar to political superiors, supreme and subordinate." — Lectures on Juris- 
prudence, vol. ii. p. 435. Mackeldey describes the province of each, " The 
public law comprehends those rules of law which relate to the constitution and 
government of the state; consequently it concerns only the relations of the peo- 
ple to the government. The private law comprehends those rules which per- 
tain to the juridical relations of citizens among themselves." —Civ. Law Comm. 
Introd. p. 8. Falck^ as cited in Pomeroy's Constitutional Law, p. 3, has defined 
them with more precision. " Public law embraces those precepts which im- 
pose duties or confer rights upon the political superiors in the state, those whc 
organically represent the state. Private law includes the civil law proper, po- 
lice law, the law as to crimes and punishments, the law as to civil and criminal 
procedure. It embraces the rules which define the rights, powers, capacities 
and incapacities of various classes of persons, private, domestic, or professional; 
he rights of property; the rights which flow from contracts and obligations be- 
.ween private persons; the description of the delicts and offenses called crimes, 
the means by which civil rights are secured and enforced; the means proper to 
maintain good morals, order, health, etc., in general all those means which aug 
ment the convenience and promote the tranquillity of social life." — Court 
cf Introduction Generate a V Etude du Droit, ch. i. These citations indicate th« 
historical scope of the distinction, and in its application to the relations of the 
political and the civil order — the nation and the commonwealth — it has the ufc 
nost value for American publicists. 

a "Lex spectat naturae ordinem." The law respecteth the order of natur* 



THE SOVEREIGNTY OF THE NATION. 189 

The law is personal ; its presentation is to persons, and 
its obligation is imposed upon persons. Its direct assertion 
in its simplest expression is, — thou shalt, and thou shalt 
not. It takes every man apart by himself, and appeals to 
him, and evokes his responsibility.^ 

The law has in its conception a universal aim. It pre- 
sumes a principle of action which is applied in it ; it is 
then set forth as regulative of all action and appertaining 
to all cases which fall within this conception. 

The law is the definition of relations to be maintained 
as constituent of a moral order and is regulative of them. 
The law assumes the existence of man in moral relations, 
as of the family. 

The law has no retrospective action, it is the on-going 
determination of the organic will. There is an injustice 
in an ex post facto law ; when one in conformance to ex- 
isting laws has done his whole duty, and certain conse- 
quences have ensued, it would be manifestly wrong to 
adjudge him and reverse the procedure, because the law- 
giver had changed his mind. 

The law is subject to amendment, to change or repeal. 
It is not immutable ; it is not stationary, but always pre- 
sumes a progress toward the more perfect attainment of 
its end. 

The law is inclusive of the nation in its physical unit} 
and being, as a whole. The nation is the domain of law , 
the law is of the nation, for the nation. It is thus, in its 
inclusive character, an authority over the individual law- 
giver through whom it is set forth. It is even its own 

" Lex non cogit ad impossibilia." The law compels not to the impossible. The 
argument " ab impossibile," is valid in law. " Impossibile est quod naturee 
•epugnat." — Dig. lib. i. tit. 17. 

1 " Law is always in its nature personal, or a law for certain persons." — 
Hurd's Law of Freedom, etc., vol. i. p. 22. 

" The law relates to persons as its basis and aim, that is, it has an essentially 
personal character. All law is throughout a law oi persons. The law necessa- 
rily has also reference to things, since these compose the physical conditions 
of human development. But the la\r in reference to things, constitutes only a 
lubordinate division of the law relating to persons." — Ahreu's Naturrecht, p. M. 



140 THE NATION. 

necessary interpreter, and while the pri^ ate judgment of 
the law-giver may be allowed as an aid to ascertain, it 
cannot absolutely determine its import ; the reference tc 
it, is only private judgment. 

The law is an affirmation ; it is positive. The sub- 
jective apprehension of right and wrong cannot assume 
the place of an objective rule. Private opinion is not 
to be elevated into the position, nor invested with the 
authority of the nation.^ The law itself is the standard 
by which the will of the nation is to be ascertained. This 
is requisite to the necessary obligation and validity of law. 
While the antithesis is superfluous, the aphorism of 
Hobbes is valid, " authoritas non Veritas, facit legem." 
There is in law alone the formal assertion of the will of 
the nation, and through it alone its will is ascertained, 
and the private judgment of no man can be the authority 
for another, nor control his action. 

The sovereignty of the nation^ in its affirmation in law, and 
acting through its normal powers, constitutes the government. 
The government is the institution in which the sovereignty 
of the nation is realized. It is the order in which the will 
of the political people is inaugurated and established. 

1 This applies also to the practice in equity, and the procedure in it is based 
upon the assumption that it is the will of the nation. Of the application of nat- 
ural law in jurisprudence, Mr. Hurd says : — 

" Whatever rules or principles, tribunals may apply as law, the}' apply them as 
being the will of the supreme authority, and as being themselves only the instru- 
ments of that will. 

" The will of the state is to be ascertained by the tribunal in one of the fol- 
lowing methods : — 

" First, direct and positive legislation is the first and ruling indication of the 
will of the state, whether it acknowledges or refers to any rule of natural origin 
or not. 

Second, since the will of the state is to be presumed to accord with natura. 
^aw, when the positive legislation of the state does not decide, the tribunal must 
ascertain the natural law which is to be enforced as the will of the state. Bu, 
this law can only be determined by such criteria as are supposed to be recog- 
nized by the supreme power of the state, if such criteria exist; and this law whep 
BO determined becomes identified in its authority with positive law." — Hurd' 
Lata of Freedom, etc., vol. i. p. 24. 



THE SOVEREIGNTY OF THE NATION. 141 

The goTernment is of the people and it is over the peo- 
ple. There is in this no contradiction, but it is predicated 
in the being of the nation as a moral person. The govern- 
ment is therefore, in its highest conception, the self-gov- 
ernment of the people, — of but over the people in every 
moment of its action. It is the will of the people in its 
self-determination, that is its sovereignty and its freedom. 

The government is the representation of the political 
people as a whole. It asserts the authority of the whole 
over the individual ; then only the will of the whole is law. 

The government is often described as a government de 
facto and de jure. The former is strictly the force which 
at a certain moment may get and hold possession in the 
state, without reference to its origin or character, and it 
may maintain itself by foreign influence or by fraud ; the 
latter is the power in the state which exists in conform- 
ance to its organic law, although the terra is sometimes 
more narrowly applied to define a government which has 
an antecedent claim in mere legality. This is strictly 
described as a legitimate sovereignty or government. 

This, as the claim of a pretender, may contravene the 
sovereignty of the people, that is the nation, and that 
government in the higher sense is only legitimate, which 
is the exponent of the will of the people, and in conform- 
ance to its organic law.^ The term has been mainly con- 
nected with the patrimonial conception of the state. 

If the government is deficient in its power, and its 
authority is no longer in the security of rights, and of free- 

1 Bismarck says of these minor pretensions of sovereignty in the German nation, 
in reference to their claims of legitimacy, — and it applies as well to the theory of 
legists of separate sovereignties here • " There are many pedantic people who 
want Prussia to protect the principle of legitimacy. But this principle of dy- 
nastic and conservative legitimacy is a fiction, and that a most pernicious one. 
Unless the conservative party renounce this principle we shall have to go the 
length of applauding the hallucinations of the petty potentates, who supposing 
they are powers, avail themselves of the pedestal of our own might to play at 
kings. And yet all this swindle is unauthorized by the history of the past, is 
quite new, unhistorical, and equally opposed to th« teachings of God, as to the 
rlghtfi 3f mankind." ~ September 10, 1861. 



142 THE NATION. 

dom, it is consequent on the decay of its internal sover- 
eignty, and while then through certain changes its externa! 
form may remain, the ultimate result is the overthrow alsc 
of its external sovereignty. If the domain of law is not 
maintained, and crime is left unpunished, and justice is not 
executed, and everything falls into disorder in the lapse of 
internal sovereignty, there is no basis for an external sove- 
reignty. It can no longer claim recognition as a nation 
by other nations ; the self-determination, the moral spirit 
in the people is gone, and the government perishes in se- 
dition and crime. 

The government cannot be imposed upon the nation by 
any power which is external to it, nor can it be inaugu- 
rated by a clique, nor instituted by a bureau, nor by the 
decree of an individual, and in none of these is there the 
assertion of the organic law. If in some transition, when 
the order is interrupted by the violence of revolutions, the 
authority is assumed by these powers, as in events recently 
in Spain, it yet can be only temporarily, and the ultimate 
reference must be to the people. 

The government is the manifestation of the sovereignty 
of the people. It rests on no contract. The nation and 
the government are not two separate parties who enter 
into a joint agreement. The people ordains and establishes 
the government, but does not contract with it. The de- 
scription of it as only a party to a joint agreement repeats 
the fiction of the social contract, in which some ground 
was sought to establish the obligation of the feudal prince 
to his subjects. When it is applied to the government of 
the people, instead of a constructive principle, it becomes 
a source of division and is inconsistent with the unity of 
the people. 

The government as the representative of the will of 
the people as a moral person, has its strength in the 
will. The strongest government is that in which there ia 
the higher assertion of personality, — that is, the realization 



THE SOVEREIGNTY OF THE NATION. 143 

af the freedom of the people. In the common phrase a 
strong government is too often identified with an arbitrary 
rule, which is inherently weak. The government which 
is without strength, lacks the constituent principle of gov- 
ernment. It is in its true conception stronger in the de- 
velopment of the people, in the maintenance of law, the 
histitution of rights, the realization of freedom. For this 
it is clothed with power and with majesty on the earth. 



fi 



CHAPTER IX. 

THE NATION AND ITS CONSTITUTION. 

The constitution of the political people has a twofola 
character: there is a real and a formal constitution. The 
one is the development of the nation in history, — the 
historical constitution ; the other is the formula which the 
nation prescribes for its order, — the enacted constitution ; 
the one is the organism ; the other is the form for the or- 
ganization of the nation ; the one is in identity with the 
nation in its organic being, it is written only in the law in 
which the members are fashioned ; the other is the method 
which the nation establishes for its procedure, and the 
order to which the whole is to conform.^ 

1 When it is not otherwise mentioned, the term is used strictly of the constitu- 
tion in its formal character, the constitution as a legal instrument, and the in- 
stitute of the government. 

" The written constitution is simply a law ordained by the nation or the peo- 
ple instituting and organizing the government. The unwritten constitution is 
the real or actual constitution of the people as a state or as a sovereign commu- 
nity and constituting them such or such a state. It is providential, not made 
by the nation but born with it. The written constitution is made and ordained 
by the sovereign power and presupposes that power as already existing and 
constituted." — Brownson's American Republic, p. 218. See Kurd's Law of 
Freedom, etc., vol. i. p. 296. Jamison's Constitutional Convention, p. 67. 

" The more we examine the influence of human agency in the formation of 
constitutions, the greater will be our conviction that it enters only in a manner 
infinitely subordinate, or as a simple instrument, and I do not believe there 
remains the least doubt of the truth of the following propositions : — 

" 1. That the fundamental principles of political constitutions exist before 
all written law. 

" 2. That constitutional law is, and can only be, the development or sanction 
of an unwritten preexisting right. 

" 3. That which is most essential, most intrinsically constitutional and funda- 
mental, is never written and could not be without endangering the state. 

" 4. That the weakness and fragility of a constitution are in direct proportion 
to the multiplicity of written constitutional articles." — De Maistre, On the 
Generative Principle of Political Constitutions, Boston, 1847. 
k The comparative value of a written constitution has been the subject of wid« 



THE NATION AND ITS CONSTITUTION. 145 

The sovereignty of the nation has its first formal ex- 
pression in the convention. The convention represents 
the constructive power and intendment of the people in 
the formation of its constitution. It is the assertion of the 
will of the people in the ordination and institution of its 
government. The power existent in it is not then with- 
drawn, hut as has been truly said, the convention persists 
in the constitution and never expires. It is the people 
foraiing the nation that ordains and establishes the consti- 
tution, and acts in and through it. 

The nation is before the constitution. It precedes and 
enacts the constitution as the determinate form of its polit- 
ical life ; it establishes the constitution as the order in wliich 
it will realize its determination. 

The constitution, which defines the formal organization 
of the nation, is the law w^hich is regulative of its normal 
action, and then also of the institutions which are its 
normal powers. The law is the formula of its process, 
the institutions are the structure of its process. The 
law and institutions, in their positive character, become 
the firm support of order, and the muniments of free- 
dom. They are established, and in them the people rec- 
ognizes its o^vn stability. The constitution stands as the 
continuous expression of the sovereignty, the freedom, 
and the rights of the people. It has the authority of law, 
and there is the defense of the whole from arbitrary ac- 
tion ; it has the stability of institutions, and there is the 
defense of the whole from individual action. It is con- 
structive of the course of the people in its entirety, and 
in the constitution in its true significance, " we stand alto- 
gether, and we march altogether.'* It is the impregnable 
barrier against the assault of a mere individualism, and 

discussion, but, if the proper limitation of a constitution be regarded, as simply 
the definition of the order of the nation, and if it does not assume the functiona 
of the legislative power, the argument for 't ma- be justified, and at least ha« 
the higher historical support. 
10 



146 THE NATION. 

the stable basis of the whole against the strife of factional 
and the pretension of provincial supremacy. It remains 
while parties rise and disappear, and while systems change, 
as the constitution of the whole, stable in the power and 
supreme in the majesty of the people. 

The constitution, as established by the will of the 
people, is of the nature and authority of law, and in its 
necessary process is the supreme law of the lamd. As 
law it is the assertion of the will of the people, and 
yet it is over the people, and obedience is to be ren 
dered to it. It is instituted in the self government of the 
people. It has therefore, as the law which is the expres- 
sion of the moral being in the nation, the sacredness of 
law. But this sacredness is derivative from its content. 
There can be no sacredness attaching to the abstract form, 
and neither devotion nor sacrifice for the constitution when 
it is regarded only as an abstract formula ; it is sacred only 
in so far as it is affirmative of the law which is implicit in 
the nation, or as the life of the nation may be affected in 
its maintenance. 

The constitution is to have the style and language of an 
instrument of law; it has the intendment of positive 
law. It is ordained of the people as the law of the land, 
the will of the whole people, and the authority over the 
whole land. It is not in its scope, since it is an instru- 
ment of law, to present any theory or speculative notion 
of the origin and substance of the nation. The presenta- 
tion of any theory is superfluous, in the presence of the 
being and sovereignty of the nation itself. 

The constitution defines the formal organization of the 
normal powers of the government. But while these pow- 
ers are established in conformance to the constitution, it is 
not to be so construed as to become the substitute for their 
normal operations. The distinction between the conven 
tion and the congress, the constitution and the laws, is 
fundamental ; the one is the definition and construction of 



THE NATIOF AND ITS CONSTITUTION. 147 

these powers, the other is their action in the condition and 
circumstance of the people. 

The nation forms the constitution^ in its own conscious 
determination. It is not a necessary physical sequence, 
as if the product of physical causes ; it is not the result 
of aimless forces ; it does not come into existence apart 
from the conscious thought and action of the people, as 
if it were to be had without effort, and sustained without 
vigilance, or as if it were to he held in a superstitious rev- 
erence. It is not attained without thought ; it does not 
increase as the trees in the wood. It is not formed, and it 
cannot be sustained in the lethargy and passivity of the 
people. It is the assertion of the will of the people, and it 
subsists in the conscious and continuous determination of 
its will. It consists in an ethical and not a physical organ- 
ism, and proceeds from, as it is maintained by, the sove- 
reignty which exists in a conscious freedom. 

The nation is to reahze in the constitution the determina- 
tion of the sovereignty of the people. It is not to be 
formed in the working of some sect or party. It is not 
to express the intent only of certain individuals ; and 
while in isolated individuals there may be the longing for 
a better constitution, it must pervade the whole and be- 
come a common conviction before it can be realized. The 
constitution thus also in its completeness, cannot be the 
work of a single generation or separate age ; it can be 
promulgated on the adjournment of no convention, as 
ample to embrace all events and all times. This is the 
oriental conception, and could result only in Chinese sta- 
bility, not national permanence. It cannot consist with 
the existence of the people as a Hving power, and civiliza- 
tion as a hving principle. It belongs to oriental immo- 
bility, not occidental spirit. 

The nation is to apprehend in the constitution its object 
and aim. The formal constitution must correspond to the 
real. It is the order m which tho people are to act, and 



148 THE NATION. 

the people must find therefore in tne constitution tLe 
expression of its spirit, and its purpose must not be fet- 
tered nor perverted by it ; but it must be able to act 
in and througli it with entire freedom, in the furtherance 
of its aim. There must be reflected in it its own spirit, 
and in so far as it fails of this it has elements of weakness 
or of peril. The life of the people cannot be sacrificed for a 
political form, or a political dogma. The nation is not to 
perish that a political theory or a political abstraction may 
strive vainly for realization. There is thus danger if some 
conception which belongs only to the past is adhered to, 
and none the less, if some which is too far in advance is 
insisted upon. The value of the constitution is relative as 
well as positive. Napoleon I. gave to Spain a constitution 
which was abstractly better than she had before ; but it 
worked badly, for it was not adapted to the people, and 
they held it as something strange and alien. In modern 
English politics there are the most fi:equent illustrations 
of the neglect of this principle. They have furnished con- 
stitutions ready made for all communities. They are the 
same empty and stereotyped form, and struck in the same 
mould, and with the same trade stamp. The spirit of all 
peoples is to find embodiment in Anglican forms and 
institutions, and to reahze an Anghcan freedom. England, 
which never has apprehended the spirit of another people, 
\nd holds forms as immutable when of her own cast, has 
always had those which she regarded as the only hope 
of other countries. In the organization of society in 
India, the native farmers of the revenue, as the best ma- 
terial to be had, were taken by force to be made into 
squires. It was necessary to society that there should be 
squires, and that they should be of the Anglican type. In 
the last century an English minister proposed a plan for 
the introduction of the whole feudal system into St. Johns ; 
in this century the Dominion of Canada has been designed 
in the same device. The constitution is to be the exponen' 



THE NATION AND ITS CONSTITUTION. 149 

of the will and spirit of the people, and that whioh is over 
it, but is not of it, or no longer of it, has elements of 
weakness or of tyranny. It is the weakness of an empty 
form, or the hard tyranny of an abstraction or system, and 
repressing but not expressing the spirit of the people, it 
crushes its energies and consumes its freedom. 

The neglect of the distinction between the real and the 
formal constitution and the consequent identification of the 
nation with its formal organization, becomes the most dan- 
gerous of political falsehoods. The nation not only is 
before the formal constitution, but the events in its history, 
which it holds in highest honor, may be precedent to it ; 
as the war of the Revolution was fought and brought to 
its close before the adoption of the existent formal consti- 
tution. 

The nation continues in its identity, while constitutions 
are changed or abolished. Eome was the same under her 
kings and under her consuls. France is the same through 
all her revolutions, and under her feudal and republican 
and imperial organizations. The nation, in her formal con- 
stitution, has not always even the indication of her real 
condition, but under the same constitution may advance 
or dechne. The constitution has, in itself, no inherent 
power and no abstract virtue to dehver the people. It is 
not for the individual nor for the nation to be saved by 
any system, however complex, nor any dogma, however 
subtle. The constitution may become itself only the 
mask which hides from an age its degeneracy, or the 
mausoleum which conceals its decay, The pedantry of 
systems may be made the substitute for Hving forces. 
The nation is not comprehenaed in its formal organization. 
There is a political truth in the rude verse of a poet of 
the Republican Age in England : — 

" Let not your king and parliarotnt in one, 
Much less apar., mistake themselves for that 
Which is most worthy to be thought upon; 



150 THE NATION. 

Nor think they are essentially the state. 

Let them not fancy that the authority 

And privileges on them bestowed, 

Conferred are, to set up a majesty. 

Or a power or a glory of their own ; 

But let them know it was for a deeper life, 

Which they but represent ; 

That there'' s on earth a yet augusier thing, 

Veiled though it be, than parliament or king." 

The nation may amend or alter the constitution which 
it has formed. The course of history in which the nation 
stands is a development ; and there is to be in it always 
the better institution of rights, and the broader domain of 
freedom, and these are to have their assertion in the con- 
stitution. The constitution must be open to recognize the 
advance in each age, since in each the work of the people 
is to be carried on under the changed conditions of an his- 
torical Hfe. Neither the indi"\ddual nor the nation can in 
any moment regard its course and order as perfect ; and, 
with entire subjection to the constitution, there must 
be in it always the expression of an higher historical 
development. It is here that the relation of the per- 
manent and the progressive element in the organization of 
society becomes apparent; the one involves the other, 
and is even its condition. The new is to be built in the 
old. It is not to be the isolation from the old ; but it is 
wrought out of the old into the new. The change which 
comes is to be ingrooved in that which flies. The reten- 
tion of all that is good in the past is to be held as no hin- 
drance to advance, but its precedent. There is to be no 
divergence from the old, as if it were necessary to take 
from the outset a new start. The wise change is not in 
the weak conceit of the ability to construct out of one's 
own political materials the best constitution, but with care- 
fiilness, lest, from the acquisition of the past, anything of 
worth shall be allowed to perish. While Rome has 
bequeathed to the world the universal terms of law, — 
and her civil law has become an institute in history of the 



THE NATION AND ITS CONSTITUTION. 151 

fvorld's civilization, — she yet held, in undying deference, 
the tables on which her first law was written. There 
must be thus always in the constitution itself forms to 
enable its amendment, and, while it is open to no sudden 
change in the momentary action of the people, it is not to 
prevent the freedom of the people. It is to assert the con- 
tinuous will of the nation in its organic continuity, and it 
must, therefore, possess permanence. It is to be open to 
the expression of progress, also, for it is to be the institute 
of freedom and of rights.^ 

If there be in the constitution no provision whereby the 
political people in its normal action can effect an amend- 
ment, or if the mode provided be such as to obstruct its 
action, there yet subsists in the people the right of reform ; 
and if, while yet there is no way open to it or only some 
inaccessible way is indicated, the hope of reform shall fail, 
and the constitution and the government which is instituted 
in it be wrested from their foundation in the consent of the 
organic will, there is then, at last, the right of revolution. 
This, in the supreme peril, is the supreme necessity of the 
people. If the people no longer finds the correspondence 
to its aim in the constitution which it has once established, 
if its advance is thwarted and it is being deflected from its 
course, and its life is being deformed, although under the 
form it once enacted and alone has the right to enact; 
if the government becomes thus subversive of its ends, 
and the friture holds no hope of a reform which may effect 
those ends, then revolution is a right. This maintenance 

1 President Washington, in his farewell to the people, which, in its political 
wisdom has, in modern political literature, no parallel, asserts, as a fundamental 
right, " the right of the people to make and to alter their constitutions of gov- 
ernment;" but, since the constitution has the form of law, the mode of amend- 
ment which it provides may be so intricate or so difficult, as to so restrict the 
action of the people, that this fundamental right shall be more eflfectually 
irrested from them, than by the most consummate tyranny. 

" A constitution which has no place for amendment is absolutely immoraL 
for it sets itself forth as absolutely perfect; i* is far more immoral than the 
mnlimited power of the monarch." — Scnleierm»^her, ChinstUche Siite, p. 270 



152 THE NATION. 

of the continuous life and continuous development of the 
nation, against that which is hindering its growth, or sap- 
ping its energy, is not strictly a revolution. It is rather 
the reverse, since there is in it the maintenance of the 
organic being of the nation and it is in conformance to 
the organic law. It is not anarchic, for it is the only possi- 
ble pursuance of the order of tlie nation, and its vindication 
from the false order which is interrupting it. It is the spirit 
of the people in its real strength which breaks through 
the system by which it is gyved. But it is only to be 
justified in the supreme necessity of the nation, and as 
itself the act of the nation as an whole, the work of the 
political people. It is not to be the act of a part only, as a 
section or faction. The development is only of the nation 
as an organic whole, and conditional in its organic unity, 
and it is this alone that is thwarted or imperilled, and in 
this alone the right subsists. Thus a revolution is not an 
insurrection, since the one presumes the action of the 
people as an organic whole, and is justified in proceeding 
from the people, whose determination is law ; the other is 
the act of individuals, a section or a faction, in revolt from 
the will of the whole .^ 

The revolution which is thus a necessity is not the dis- 
cord, but it is more strictly the concord of the nation, and 
when thus a necessity, the order which is set aside will be 

1 " The moral condition of a revolution is that it express the conviction of 
the common people and the common will." — Fichte, Naiurrechte^ p. 238. 

" The right of revolution must be grounded in the living conviction of the 
whole." — Schleiermacher, Christliche Sitte, p. 265. 

" Eegarded abstractly, revolutions are always moral anomalies; but actually 
they are to be regarded as unavoidable and therefore only apparently moral 
anomalies. For in human history, through the power of sin, the development 
cannot continue to proceed in a continuous sequence, but only through many 
throes and crises. The revolution which is really the work of the nation itself 
can only be regarded as such a crisis, which, through external impediments 
becomes the condition of the maintenance of the moral life of the nation; and 
Buch a revolution therefore can only be justified when it rests on the living con. 
viction of the people in its totality." — Kothe, Theolocische Eikik, vol. iii 
sec. 2, p. 984. 



THE NATION AND ITS CONSTITUTION. 153 

succeeded immediately by the real order of tlie nation, in 
its new form, witli the return of the energy of the people, 
and its ampler freedom. It is not therefore of any to 
glorify revolution, which can appear only in a disturbed 
order ; but when in the mystery of evil, the energy of the 
people is impaired and its life withering, although its path 
can be only through violent struggle, it is yet to rejoice in 
the power which may resist and overcome the evil. It is 
thus that epochs of national revolution have been those not 
of despair, but of hope and exultation, and there has 
been in them, as there is not in the triumph of parties or 
factions, the renewal of the strength and spirit of the 
people. 

The nation thus may be the stronger in the crisis in 
which its constitution is swept away, and there may be in 
it the evidence of a power which opposing evils could not 
wholly destroy. It is the life which could not be utterly 
crushed, and the strength which could not be entirely con- 
sumed by fetters forged through lapse of time, in which 
privileges assumed to be alone the precedents of action^ 
and were girt by legal forms and devices, until they barred 
out the rights of men. The transition from the feudal 
constitutions of Germany, has been in every crisis the 
development in its higher unity of a national life. The 
age of the commonwealth, when the same result in part 
was effected in England, was the last great age in her 
history. The French Revolution bore throughout the 
ieepest devotion to the nation, and in its tumultuous 
changes no voice was lifted against the unity and glory of 
France. The American Revolution was the act of the 
political people of the whole land, in the endeavor toward 
the reahzation of the nation. These crises were in the 
development of national Hfe, and the constitution displaced 
was foreign to the political people. 

The constitution is primarily to define the structure and 
the mode of action of the normal powers m the nation. 



154 THE NATION. 

It is the enumeration and the Hmitation of these powers. 
and is then simply the norm of their action. It is to reg 
ulate the form, but it is not to specify the content in their 
action. It is to prescribe the organization of the nation, 
and not that which shaU be in the action of the organs, 
It is as the chart of a ship, and the order of its company , 
but it knows not the voyage it shall make, nor the storm 
nor mutiny it may encounter, nor those whom it shall 
carry, nor the seas it shall sail. 

The prescription of the action of the people in all 
events and circumstances, is not in the scope of the con- 
stitution, and it would not be possible. It is not requi- 
site to its stability, nor to the firm order of the gov- 
ernment; but in the effort of the past to control the 
fixture it would induce elements of conflict which would 
impair the whole. The constitution which sought to 
predetermine the future, and to forestall the conduct of 
affairs in the infinite change of time and circumstance, 
would presume that a people was already beyond the con- 
ditions of history. If the people possessed a living energy, 
and was not itself as dead as the past, the object, if at- 
tempted, would be as vain as the insistance that men in a 
real battle should listen, for the word of command, only to 
the echoes of the voices of commanders on some battle- 
field of the past, whose banners are folded, and firom which 
the ranks have long since marched away. It would be, 
against the inevitable current of events, which still would 
sweep on resistless as time, the building of " parchment 
barriers," and in the real crises they would be thrown 
aside, as the impediment in the path of a fi:ee people in its 
necessary course. 

To attempt to make the constitution the formula which 
not only shall define the order of the people but mould 
the events in its history, to make it determinative of the 
course of the people in these events as they arise, to make 
It the substitute for the process of laws and statutes whiet 



THE NATION AND ITS CONSTITUTION. 155 

become in their immediate enactment the embodiment of 
a living will, is itself possible, only as the nation is no 
longer a living power, and has no longer a living will. The 
constitution which the convention has formed, and which 
has been adopted, is in its nature the supreme law, but 
in its own provision, to make its amendment difficult or 
well-nigh impossible, and then to assume that it shall be 
exclusively and exhaustively definitive of the action of the 
people in all events, involves the denial of the organic and 
moral being of the people. It is directly immoral, since in 
its necessary inference the people no longer exists as a 
power in the moral order which is the life of history. It 
does not honor the past, nor is it joined with it in liv- 
ing relations. Thus in the strict historical school there 
is always a regretfiilness, as that the convention of 1787 
should have adjourned, and that there is now no Hamilton 
and no Madison ; but this deference does not honor them. 
We may only know of them that they had the strength 
to do, knowing that things were to be done, and that their 
strength was as their days. Of this spirit, which may become 
a weak superstition, the age has to learn, in the words of 
another, that the bones of the giants of old have been 
found and they measure no more than ours. This concep- 
tion enslaves the present to the past instead of emanci- 
pating it with the past. It is the worst tyranny of time, or 
rather the very tyranny of time. It makes an earthly 
providence of a convention which has adjourned without 
day. It places the sceptre over a free people in the hands 
of dead men, and the only office left to the people is to 
build thrones out of the stones of their sepulchres. The 
spirit is immured in the walls it has built. It is in politics 
the thought which in history had its expression in Egypt. 
It is said by Hegel, that as it is reflected in her monu* 
ments, the Egyptian was in love with death, and thus 
there was always a skeleton at the banquet, but this places 
the same image not onl^ in the assembly of the people, 



156 THE NATION. 

but in the power of tlie majority in it. It elevates the 
past to a throne over the present, of irreversible de- 
crees.^ 

The constitution determines the order, but it cannot 
predicate the course and destination of the people. It is 
not providence, nor destiny. The years and what they 
bring, are withdrawn from the gaze of conventions as well 
as of men. They have no more a horoscope to forecast 
the fiiture in the lives of nations than of individuals, nor 
can they outmaster time, nor wrest the secret from thi 
years. The constitution is to provide that the people shaL 
stand together, and march together, but their line of march 
is hidden from it. The nation is formed in the changing 
conditions of history. It must pass through conflicts 
which the prescience of no assembly can anticipate, and 
they will not regulate their coming by the action of any 
convention, nor conform to its project, nor abide in its 
provision. The aim of the constitution is to leave each 
generation free to do its own work to which it is called, 
but in the continuity of the nation, and in its normal pro- 
cess, and therein, it becomes the assertion of the unity of 
law, with the realization of the fr^eedom of the nation in its 
being in history. 

The constitution, when it transcends its province, and, 
from the enumeration of powers and the exposition of 
rights proceeds to the specification of their content in 
the immediate direction and adjustment of events, becomes 
imbedded in political theories, which are introduced to sup- 
plement its literal articles, or encumbered with minute 
detail. Since it is in its form a positive law, it becomes^ 
then, through judicial interpretation, complicated with pre- 
cedents and opinions, and is tortured by judicial decisions, 
until, instead of representing the will or the freedom of 

1 " Whosoever will have a government that cannot follow its living cDnvictioa 
Bets the dead over the living, an i denies the moral development of the state." — 
Bchleiermacher, Chrisiiiche Sittt, p. 273. 



THE NATION AND ITS CONSTITUTION. 157 

the people, it is only the field ground for lawyers ; the 
people no longer recognize their aim nor their stability 
in it, and its intricate and complex character tends to 
produce ignorance of, and then indifference to it. 

The constitution has a positive and a relative value. 
It has the elements of a universal as well as an individual 
character, since the nation has a universal aim as it has 
an individual life. In the critical study of a consti- 
tution its comparative advantages are therefore to be 
regarded, and there is to be applied to it a common as well 
as special estimate. There is thus a high value in the 
comparative study of the constitutions of nations. 

The constitution is to become in the progress of the peo- 
ple the institution of an ampler freedom, and a more perfect 
organization of rights. As the sovereignty of the people 
attains a more determinate expression in it, that which is 
vague and incomplete, or inconsistent and incongruous, is 
set aside. The arbitrary can find in its vagueness only 
the cloak for tyranny, and the treacherous the mask for 
secession and anarchy. Its language is, therefore, to be 
plain, to express the purpose of the people. It is in its 
high conception, the evidence of the stability and the 
instrument of the freedom and the assertion of the sov- 
ereignty of the people, in whose wiU it is ordained and 
established. 

The more perfect constitution is always to be the aim of 
the whole as it is the indication of its advance. But the 
formal constitution is not to be an end in itself, and its 
worth is derivative only from the life it conserves. To 
reverence it for its own sake, may create a spirit not of 
law but of mere legality. The superstitions of lawyers are 
more perilous than the superstitions of priests. It is the 
adherence to a pohtical formula, to which it attaches a 
separate sanctity, and refuses all change, while its spirit 
is wasting and deca^^ng. It holds the form above the 
life and being of the nation which it was instituted to 



158 THE NATION. 

maintaiii. There is here the contrast of a righteous and ar 
evil conservatism ; the true conservatism aims at the main- 
tenance of the being and the unity of the nation, although 
the form be changed or destroyed; but there is a false 
conservatism, — there are those who, in their regard for 
the constitution of the nation, deny the nation itself.^ They 
would sacrifice the nation to maintain the constitution. 
They hold the constitution as something above and sepa- 
rate from the people, to be looked upon with another rev- 
erence. They place the symbol above the reality, and 
adhere with a blind attachment to the letter, when it is 
dead to the spirit. It is at last the conservatism of a polit- 
ical hypocrisy. It is the conservatism of the scribes and 
pharisees and lawyers ; but they neither knew nor cared 
for the calling of the ancient nation. It is busy reading 
the inscriptions and repeating the legends upon the stones, 
while the fires upon the altar are dying, and it will build 
and adorn the sepulchres of the prophets, while the great 
Prophet of humanity stands unheeded in the streets of its 
Capital. 

1 " Conservatism consists not in that the old form be retained, but that the 
substance be maintained." — Stahl, Fkilosophie des Eechts, vol. ii. sec. 2, p. 200. 

" Conservatism, when it rightly understands itself, will in no way hold on to 
the exact form of the state as hitherto existent; but will hold fast the preser- 
vation of the state itself, under the development of its form." — Rothe, Theolo- 
gische Ethik, vol. iii. sec. 2, p. 995. 

" We have heard of the impious doctrine in the old world, that the people 
were made for kings, not kings for the people. Is the same doctrine to be 
received in another shape in the new, that the solid happiness of the people is to 
be sacrificed to the views of political institutions of another form ? It is too early 
for politicians to presume on our forgetting that the public good, the real welfare 
of the great body of the people, is the supreme object to be pursued; and that 
no form of government whatever has any other value than as it may be fitted f<M 
the attainment r^f this object." — President Madison, The Federalist, No. xiv. 



CHAPTER X. 

THE NATION AND ITS SOVEREIGN RIGHTS. 

The nation, in its sovereignty, is possessed of certain 
necessary rights. These are rights which are involved in 
the attainment of its necessary end in history. They sub- 
sist in the unity of the nation, and in their historical manifes- 
tation, they become the indices of its sovereignty. They 
have thus an integral character ; they are not an indiscrimi- 
nate and incongruous collection of powers, but are formed in 
a necessary correlation, as the sequence of the unity in 
which they subsist. They exist in the correspondence of 
rights and duties, and there is resident in them the neces- 
sary responsibilities of the nation. 

Firstly ; the sovereignty of the nation involves the right 
to its own existence. The right which is precedent to all 
others is the right of the nation to be ; the law which, 
in the conflict of laws, abrogates all others, is the 
law of its supreme necessity. It may, therefore, in its 
necessity, interrupt and suspend the ordinary course of 
rights in their reference to the individual or the commu- 
nity. 

The supreme object of the government is to care for the 
preservation of the nation. In this end, it is justified, in 
its necessity, in the suspension of the ordinary procedure 
of its law and order, which then becomes the assertion of 
its higher law, and the maintenance of its enduring order. 
The principle of action is then, solus populi^ suprema lex. 
When the necessity of the nation thus demands it, it 
is not the negation of rights and of laws, but in the 
deeper sense and sequence their maintenance. But in 



160 THE NATION. 

this action, the necessity of the government is the expo- 
nent of the necessity of the nation, and of and for itself, 
the government has no right to interrupt the process of 
laws. 

It is justified only as the peril of the nation is ac- 
tual or imminent. There is no consideration of a result- 
ant advantage that can become its ground, since then it 
would presume to be itself the normal law and condition 
of the land. It is a power so high, and yet so imperative, 
that there should be in the constitution itself the carefui 
provision for its exercise, and the protection from its abuse. 

The right has been recognized as necessary by every 
historical people. In Rome, it was asserted in the words, 
" videant Consules ne quid detrimenti capiat respublica " ; 
in England, it is construed in the right to suspend the 
habeas corpus ; in France, Italy, and Germany, in the right 
to declare martial law ; in Rome, it could be formally exer- 
cised only by an act of the senate, and in England, by an 
act of parliament. 

The nation may call for the willing sacrifice of the life 
and property of its members, and this has its precedent in 
the being of the nation as a moral person, to whom is given 
a vocation in the moral order of the world. The sacrifice 
of the individual is for the longer life, and the surrender of 
material wealth, is for that in which the moral acquisitions 
of humanity are conserved. But this is consistent alone 
with the being of the nation as a moral person, and when 
the nation is assumed to exist only as a necessary evil, or 
only for the protection of property and persons, this right 
becomes a contradiction, since in the one instance it woulri 
be the deference to a mere fate, and in the other its exer- 
cise would presume an immediate negation of its end. 

Secondly ; the sovereignty of the nation embraces the 
right to declare war and to conclude peace?- The natioc 

1 Rothe says, " Every war which is morally justifiable, is a national war " - 
Theologkche JEthik, vol. iii. sec. 2, p. 958. 



THE NATION AND ITS SOVEKEIGN EIGHTS. 161 

is the investiture on the earth of right with might ; it is 
constituted as a power in the moral order of the world 
and for the maintenance of that order. The right to 
declare and make war belongs only to the nation, and 
to that only as the minister of righteousness, the power 
which in its normal being is to assert justice against vio- 
lence, and law against anarchy, and freedom against op- 
pression. The nation in its sovereignty alone can declare 
war, and alone can conclude peace, to which all surrender 
is made. The nation has therefore the supreme command 
of the physical force of the people, — its military. In the 
armed might of the nation there is the manifestation of its 
power, but the might is to be one with the people in its 
unity and its totality, and then there can be no danger to 
the freedom of the individual or of the whole, but there is 
the immediate security of that freedom. Therefore every 
member of the nation that can bear arms, and not a sepa- 
rate order and organization, must be trained to arms.^ This 
belongs to the education of the whole people, and should 
* be the instruction of its schools and universities ; there 
is in this the moral significance of the world discipline, 
which the study of the technic of science and of abstract 
propositions inclines to forget, and which always has so 
singular beauty in its significance in the pages of Roman 
literature. This discipline is presumed in the nation in 
its being as a moral person, and is inconsequent in edu- 
cation only as instruction is limited to a formal or an in- 
dividual conception of the nation. It is as one army that 
the people becomes conscious of its power as a nation. 
There is then the apprehension of righteousness as no ab- 
stract principle or spectral ideal, but as invested with might 
on the earth. Then there appears that spirit of sacrifice 
in which the unity of the nation is laid, and in which its 

1" The army must not only be national, but be the nation, — the nation in 8« 
far as it is capable of tearing arms, in its totality must form the army." 
Rothe, Theolofjische Ethik, vol. ii. S3c. 2, p. 964. 
II 



1G2 THE NATION. 

life is gained. Then the prophecy of the future of the 
nation is not in those that are, but in those that have given 
themselves for it, and its continuity is in those that died 
that the nation might live.^ 

The declaration of war, therefore, can be justified only 
as it is national, or the act of the nation. Its end is to be 
that which is involved in the being of the nation, and in 
its vocation in a moral order. This indicates the spirit in 
which war is to be conducted. It is to be waged with no 
individual hostility, nor against private persons, nor with 
a subordination to private ends. It is not the destruction 
of the lives or of the property of men that is its object ; it 
is not the destruction, but the defeat of "the enemy that is 
sought ; and all destruction is justified only as necessary to 
its prosecution, or to the public defense, or as effecting a 
more speedy termination, and a more sure peace, ^ 

The formal declaration of war and conclusion of peace 
must be the act of the nation in its sovereignty ; a com- 
pany or a division of an army may, with no immediate 
authorization, in certain circumstances, commence hostili- 
ties, but it cannot declare war ; and the enemy may lay 
down its arms, before a company or a division of an army, 
but it cannot conclude peace. 

Since there belongs to the nation the supreme command 
of the physical force of the people, the nation can allow, 
within its limits, the accumulation of no force which is 
not subject to its ultimate authority. The commonwealth 

1 " The meaning and the end of the military power of the nation, is found 
not merely in the conquering of enemies, and the suppressing of rebels, and the 
preservation of an undisturbed order, but in that the nation itself in its might 
shall stand forth as a righteous warrior." — Stahl, Fhilosqphie des Eechts, vol. 
ii. sec. 2, p. 180. 

" This might is not merely the outward means, for the maintenance of public 
jrder, ))ut it is also in itself the moral energy of the nation." — Stahl, vol. ii. sec, 
2, p. 140. 

2 A very striking definition of war is cited by Eothe from Wirth, — " the 
power of one people against another people in its whole might, its totality." 

Pomponius, — "hostes sunt quibus bellum publice popidus Roraanus decr&' 
vit; coeteri latrunculi vel prsedones appellantur." 



THE NATION AND ITS SOVEREIGN RIGHTS. 163 

necessarily cannot declare war, nor conclude peace, and 
it has in its direction tiie physical force, only as a con- 
stabulary for the maintenance of internal order, and for 
operations only within its confines. The nation, in its 
sovereignty alone, can appeal to the issues of war, in 
which the existence of the whole is involved. 

The nation, in its physical as in its moral unity and 
being, is a power over the individual, and must effect 
its purpose, notwithstanding individual caprice or intent. 
But in the baels of the state, in a mere individualism, 
there is the foundation for none of its rights of sovereignty, 
nor can it justify their necessary action. It is not the 
security of property and persons which is primarily in- 
volved in war ; but it is the direct reverse ; and the call 
of the nation, in its right in war, belongs to no individual 
and no collection of individuals, but it is an authority in and 
over the whole. 

The end of war is peace, "a peace that will come, 
and come to stay." A universal peace is the goal of the 
nations in history. But it is assured only in the realiza- 
tion of the unity and of the being of nations, and in 
their higher development and power there is the advance 
toward peace and its surer prophecy.^ 

1 Napoleon III. has often expressed this, but it is not in the empire. 

Rothe says : " That end ■which is a universal peace is approached in the 
same degree in which the idea of the nation — the political idea, fills and 
penetrates the consciousness of the people." — Theologische Etliik, vol. iii. sec. 
2, p. 954. 

The recognition of the Rebels as belligerents, by England, and their conse- 
quent investiture with the rights of war, indicated the spirit of an hereditary 
aristocracy, a governing caste toward the nation, and its want of all con- 
Bciousness of national rights and duties, and the subordination of national to 
orivate interests. It was not the act of the people of England, if there be a 
people. The neutrality, which England professed between the nation and the 
. ebels who were seeking to destroy it, in the nature of things and in the moral 
order which is the precedent of the laws of nations, was no neutrality; but her 
lecogniiion of them as belligerents, and their investiture with the rights of war, 
threw around them the protection of rules and regulations which were formed in 
witernational law only fornations, and placed a rebel force, in the view of Roman 
hw — latrunculi vel proedones — on the same footing with a nation, and the ad- 
vantage was secured to them of the rights of nations, while the hazard of their 
political recognition as a natioi was avoided. 



164 THE NATION. 

Thirdly ; the sovereignty of the nation embraces the right 
to form and sustain international relations. This is in 
history the immediate sign or note of political sovereignty. 
It is the formal manifestation of the external sovereignty 
of the nation. It belongs to the nation alone to enter into 
chose relations with other nations which are in the prov- 
ince of international law ; it alone can make treaties with 
them, and send ministers and embassies to them, and re- 
ceive them in tm-n. 

Thus, also, the members of a nation can have no public 
or official communication with another nation, excepting 
through the representatives of the nation to which they 
belong, and can receive from another no mark of honor or 
consideration without its consent. Thus, also, no repre- 
sentative of another nation can be accredited to, nor 
recognized by, nor in his official character hold com- 
munication with any individual or section of a nation, 
excepting through the constituted authority of the nation. 

Fourthly ; the sovereignty of the nation embraces the right 
to adopt in its citizenship, and to invest with political rights 
and powers, those whom it may for this object elect, of 
those who may emigrate to it. Thus, also, each citizen 
has the protection of the nation, in the rights it has con- 
ferred, not only through its whole domain, but among 
other nations in so far as these rights are defined by 
treaty ; and, wherever he may go, he may claim, in his 
integrity, its defense. It throws around each its entire 
majesty, and an injury to the least who is its citizen 
is an injury to the whole. 

There is for every person who is in the nation, or may 
'.{ravel or reside in it, security in civil rights, — the protec- 
tion of life, liberty, and property, in conformance to its civil 
administration and subjection to its civil authority, — since 
these rights subsist in the necessary relations of life ; but 
't belongs only to the nation, in its sovereignty and its free- 
dom, to invest those who may come to it with poHtica 
rights, — its citizenship and its freedom. 



THE NATION AND ITS SOVERi^IGN RIGHTS. 165 

But the citizens of another nation, who may travel or 
reside in it, or acquire and hold property in it, are subject 
to the conditions of its civil order. They hold property 
on the same conditions with its own citizens, and subject 
with theirs to loss incurred by accident, by the possible 
interruption of order in social crises and by the vicissi- 
tudes of war. No nation can invade the domain of an- 
other on the pretense of the maintenance of the civil rights 
of its citizens, nor obtain any reparation for loss or injiuy 
to persons or property which may arise in these circum- 
stances, except that which is allowed by the nation itself 
to its own citizens. The opposite principle would involve 
not only an unequal preference of ahens, but would con- 
cede to them an increased security, — that of the land to 
which they belong, in addition to that of the land in which 
they choose simply to reside and hold possessions. 

Fifthly ; the sovereignty of the nation embraces the right 
to coin and issue money — the representative of all values 
within it. The signature of the nation which is stamped 
upon the money it issues, is the sign of its power in its 
original right of possession, and of the maintenance of prop- 
erty, as an institute of the nation, whose value it is to sus- 
tain. The description of money is not limited to a single 
style, as gold or silver or copper, which form in common 
the accepted standard of values, and which in the trans- 
action of exchange are less rude than an exchange in cat- 
tle, but are not of themselves stable. 

But the nation, in the exercise of this power, does not 
and cannot by any formal act create values, and as it is to 
maintain the institution of property by its laws, so in the 
issuing of money there is to be the representation of 
actual values. The issue which does not represent actual 
values, but is made a legal tender in the formal exchange 
K.i values, as in the hquidation of contracts, may be and is 
justified in the temporary destruction of war, while yet it 
s destructive of actual values and can have no justification 



166 THE NATION. 

in peace. It becomes then, not an appropriation of a 
part by the nation, in its supreme necessity, when the 
nation in its original right owns the whole, but a fraud, 
and involves the robbery not only of the poor but of all 
men. 

The crime of issuing counterfeit money is also twofold, 
and is not only a fraud and a robbery, but in a higher 
degree is a crime against the state. 

Sixthly, The sovereignty of the nation involves the right 
which is described in its formal phrase, as the imperium or 
eminent domain. The organic people holds the possession 
and inheritance of the land, as one and indivisible. The 
supreme authority over the whole land belongs to the 
people in its organic and moral being, and it has a right 
correspondent to its authority not only over persons but 
over the land and all things in it. 

It is to maintain the authority and the supremacy of its 
laws through the whole domain. In this rests the right 
of the nation to interdict the assumption of authority or 
the exercise of power by another nation within its ter- 
ritory. Therefore no foreign government can perform 
within it an office, even of civil police, without its con- 
sent, and can hold no possession or private estate within 
it, but as subject to its authority. This is the occasion for 
treaties of extradition. 

The right appears also in the levying of taxes, which 
are a prior lien upon all property within it. A tax is 
not, as in false representations of the state, primarily a 
certain amount paid to the nation in consideration of the 
advantages obtained from it, nor as an equivalent for its 
protection, nor is it a certain sum donated to it in order to 
secure the remainder, but it is the taking by the nation, 
for its own necessary use, of that which it alone holds in 
full in its original right. 

This right forbids the ahenation of any part of tha 
wliich by nature and in history constitutes the domaiu 



THE NATION AND ITS SOVEREIGN RIGHTS. Wl 

of the people in its integral unity .^ In the barbaric con- 
stitutions and in the feudal system, the ruler could divide 
or transfer the domain, as in the administration of a 
private estate ; but, in the public character of the domara 
of the nation, it is held, as constituted in nature and in 
history, as one, and as inalienable and indivisible. 

This right includes the immediate, that is, the pro- 
prietary right, to certain places and parts which are the 
immediate possession of, and are to be held by, the nation 
in its sovereignty. This includes, — Firstly, All that 
which by its nature is withdrawn from private possession, 
or is of immediate necessity for the public use. The 
rivers, lakes, bays, and harbors or ship-homesteads, and 
the great highways, the military and post-roads and 
telegraph-routes, are of this description. The hne, for 
instance, of the Ohio or the Mississippi, the bay of New 
York or San Francisco, or the passes of the Atlantic and 
the Pacific Railways, are the possession of the whole 
people, and belong to the nation. They do not belong 
to those who are resident by them, but are the domain 
of the people. Secondly, This includes all places and 
parts which by nature are formed for the defense of the 
whole. The chffs or outlooks which are suited for forts 
or signal-stations, or the lines adapted to mihtary for- 
tifications, or places for naval yards are of this descrip- 
tion. Thirdly, This includes all waste and unoccupied 
lands and places throughout the whole ; thus, the ter- 
ritories are in the immediate ownership of the nation. 
Fourthly, To this may be added the immediate possession, 
by the nation, of its capital. This is not a city simply of 
ertain municipal privileges, but belongs to the nation, 
and, in its central position, should be free from immediate 
social and commercial influences and their agitation. It is 

1 *' The mere rectification of a boundary is not to be regarded as tbe alienation 
jf the domain of the state. A part of the domain of the state is not alienated 
thereby, but the whole is more exactly defined." — Bluntschli, AUgemeines 
Statsrechts, vol. i. p. 217. 



168 THE NATION. 

the place of the government and of the ordained and repre- 
sentative majesty of the nation ; it is the witness of ita 
unity ; it is connected with the long line of its presidents 
and representatives, and judges ; and around it gather the 
armies of the nation ; and over it, always, the nation's flag 
is floating; to it the ministers of all other nations must 
proceed; from it there goes forth that law which is an 
authority over the whole people and through the whole 
land. It is around its capital that the deepest associations 
gather ; its peril stands for the peril of the people, and its 
deliverance is the sign of the deliverance of the people. 

In the necessary correlation of rights and duties, there 
is also attached to this right the duty of the nation, in its 
physical progress, to undertake and execute those works 
which are necessary to the well-being of the people, and 
which by their nature are beyond private enterprise, and 
are removed from the immediate scope of individual inter- 
est and individual power, such, for instance, as the con- 
struction of military aiid post roads, the improvement of 
rivers and harbors, the survey of coasts, the building of 
lighthouses, the planting of forests, etc. 

The fact that whenever the nation may assume pos- 
session of any place and part, compensation is rendered, 
involves no contradiction of the right of eminent domain. 
The national right is asserted in the right to effect a ces- 
sion of the property, and the private right the nation itself 
sustains, in the allowance of an adequate compensation to 
those in immediate possession. 

This right comprehends, also, the right in the nation to 
the extension of its domain by purchase, by occupancy, 
^r by conquest. The extension of its domain is the act of 
ne nation in its sovereignty. When another nation is 
affected, it may be by treaty, and this is a fr-ee and peace- 
ful cession. To this Grotius first added as a condition, the 
consent of the present occupants of the parts annexed ; bu 
the interests of the nation are in no comparison with those 



THE NATION AND ITS SOVEREIGN EIGHTS. 169 

of an isolated and detached territory in whicli there is no 
pohtical organization and no poHtical life, and the former 
cannot be conditioned upon the latter. The requisition of 
an inquiry, as to the consent of the existing occupants, has 
only a formal justification, and is a pedantic compliance 
with a formal political theory.^ 

The inquiry as to the residence of the right of eminent 
domain in the United States has an interest for lawyers, 
as the phrase is strictly technical ; but it has only a formal 
interest, and the fact is determined in the poHtical being of 
the pohtical people. The evidence of the subsistence of 
the right in the people ctf the United States rests in the 
fact, firstly, that the organic and historical people is, and 
can only be, the dominus or lord : secondly, that the de- 
fense of the whole domain is in and of the United States 
alone: thirdly, that all acquisition of territory, by purchase 
or conquest, is by the United States alone, and the imme- 
diate transferal is to the United States, as in Louisiana 
and Alaska; fourthly, that all rectifications and deter- 
minations of boundaries are made in and through the 
United States alone : fifthly, that treaties of extradition are 
made by the United States alone, and fi:om it alone can the 
extradition of any person be obtained: sixthly, that all 
vacant and unoccupied territories are held by the United 
States alone : seventhly, that taxation by the United States 
is a prior Hen upon all property throughout the whole : and 
finally, on the other hand, the fact that no commonwealth 
can enter upon or effect an acquisition of territory, nor 
alienate territory to a foreign power, and that no common- 

1 The principle which is to govern territorial extension has been stated as 
follows: " The government has long since laid down its principles in respect of 
territorial extension. It comprehends, it has comprehended, those annexations 
which are commanded by an absolute necessity, uniting to the country popula- 
tions having the same manners and the same national spirit as ours. France 
an only desire such territorial aggrandizements as do not impair her territorial 
wchesion, but she should always labor for her moral and political aggrandizement 
by using her influence to advance the great interests of civilizatior." — Napoleon 
in. Circular, 1868. 



170 THE NATION. 

wealth can of itself determine its own boundaries or effect 
tlieir rectification ; these considerations, from a simply lega. 
position, are decisive. But if there is a legal doubt, let it 
be supposed that, in fact, some commonwealth begins a 
course of territorial aggrandizement, or attempts the aliena- 
tion of any portion of territory to a foreign power, and the 
error in the claim becomes apparent. 

The legal confusion has arisen from, the fact that while 
the right of eminent domain is in the United States, the 
formal administration of the power implied in the right, as 
a civil procedure, is referred to the commonwealth in con- 
formance to its normal constitution. The evidence as- 
signed for the residence of the right, primarily and exclu- 
sively, in the commonwealth, has been in the fact that all 
private escheats fall to it, but this conforms to the province 
of the commonwealth, since private interests are consti-% 
tuted in it ; but no general or public escheats fall to the 
commonwealth, and it has within its confines the right to 
vacated lands, but it has no right to vacant lands. There 
is the fact of the possession of unoccupied lands by Texas, 
but this is anomalous and ought not to be allowed to 



1 " The dominus is the United Statee, and the domain of the whole territory 
■whether meted into particular States or not, is in the United States. The 
United States do not part with the domain of that portion of the nations^ do- 
main included within a particular State." — Brownson, American Republic, p 300, 



CHAPTER XL 

THE NATION AND ITS NORMAL POWERS. 

The sovereignty of the nation has its institution in the 
powers in which the government is constituted. The will 
of the organic people, in its normal action, works through 
different members, to which are attached different func- 
tions. The nature of these powers and these functions is 
imphcit in the nation in its organism, — their manifesta- 
tion is in the process of freedom and of rights. 

The formal organization of these powers has obtained its 
higher construction in the modern age. The distinction 
of their different organs and their functions, is illustrative 
of its higher development. In the poKtical body, as in the 
physical, each organ has its separate use for which it is 
formed, and each has no separate existence, but they sub- 
sist as the organs of one body. 

The distinction of these powers, although in imperfect 
outhne, is traced by Aristotle. He describes, firstly, the 
assembly for pubHc affairs ; secondly, the chief magistracy, 
— the executive power ; thirdly, the judicial power. The 
decision in regard to all crimes of a public character is re- 
ferred to the first or the legislative power and the chief 
magistracy or the executive power is made subordinate to 
t. " It is the proper work of the popular assembly to 
letermine concerning war and peace ; to make or termi- 
r. ate aUiances ; to enact laws , to sentence to death, ban- 
ishment, or confiscation of goods ; and to call the magis- 
trates to account for their behavior when in office." ^ 

In modem poHtics the distinction has been held in a 

1 Politics, bk. iv. ch. 14. 



172 THE NATION. 

clearer and firmer conception, and obtained a wider ao 
tualization throngli Locke and Montesquieu, but it has 
been defined by none with greater fuUness than by the 
earher American publicists, and especially in the writings 
of President Madison. Its genesis forms one of the most 
significant pages in the history of modern politics. The 
assertion of legislative and judicial powers, as original in 
the civil and political organization, against the sole and ex- 
clusive prerogative of a king, to the exercise of all powers, 
has been indicative of the advance of freedom ; and the 
assertion of the distinction of all these powers, and their 
ampler development, has been indicative that the more 
perfect organization of the nation is in the reahzation of 
fr-eedom. The distinction of the normal powers of the 
nation in its civil and pohtical organization has been prin- 
cipally as the Legislative, the Executive, and the Judicial.^ 

1 There have been various analyses of these powers, but their value is chiefly 
illustrative, and they have no correspondent historical justification. The de- 
scription of Locke, and of Montesquieu, and also of Hegel is, I. Legislative. — 
Pouvoir Ugislatif. II. Executive, — Pouvoir executif. III. Judicial, — Pou- 
voir Judiciare. B. Constants added to these, IV. An intermediate power, — 
Pouvoir moderaieur. This was an attempt to define more clearly their unity. 
The executive power has also been further divided into (a.) An administrative 
power, — Pouvoir administratif ; and (b.) A supervisory power, — Pouvoir in- 
spective. 

Trendelenburg designates four powers, — vier functionen, — I. The Govern- 
ment, — Die Regierung. II. The Military power. III. The Legislative power. 
IV. The Judicial power. But it is obvious that the Military is not a power cor- 
responding to the other powers, since it is simply the organization of the physi- 
cal force of the whole; it is in subjection to the political power, and its neces- 
sary principle of action is that of entire subordination in the political whole. — 
Trendelenburg. Naiurrechie, p. 160. 

Bluntschli's description indicates the tendency of recent German publicists 
The common distinction jg criticized as too formal and abstract, as something 
i\ry and pedantic, and this also is the criticism of Stahl. In Bluntschli's state- 
ment the legislative power is necessarily precedent, and is over against all 
others and is regulative of them, but in the organization of this power, tne 
Crown and the Parliament, or the President and tne Congress form each an in- 
tegral and inseparable element. The powers are thus defined, as, I. The Gov 
ernment, — Die Regierungsgewalt, das Regiment. II. The Court, — Die RichteV' 
lichegewalt, das Gericht. III. The Public Instruction, — Die Statscultur. IV 
^he Public Economy, — Die Wirthschaft. The presentation of these powers ii 
given with great fullness of historical illustration. — Allgemeines Ste.tsrechi 
vol. i. pp. 446, 503. 



THE NATION AND ITS NOEMAL POWERS. 173 

These powers in their origin and content are not deter- 
mined in some historical accident ; nor are they merely the 
expedient of human ingenuity, for which some substitute 
may be found in some other and better expedient, whereby, 
for instance, legislative or judicial functions shall be super- 
seded; nor are they the sequence of some formal law. 
They are the manifestation of that which is immanent in 
the organism of the nation.^ 

These powers represent the will of the organic people 
in its civil and pohtical organization. Their origin is in 
the necessary being of the nation, and their action is its 
normal process. 

The necessary characteristics of these powers may be 
traced in their structure. 

These powers are organic. They are not the mere inci- 
dent of the action of the state, their distinction is not acci- 
dental nor arbitrary. They are not merely an artificial 
contrivance ; their connection and their action is not as in 
some ingeniously devised mechanism, but as subsistent In 
the civil and political organism their action is unitary and 
organic, and in the civil and political development is their 
ampler organization. 

There is an abstract conception which represents the 
state as simple not complex, as arbitrary not natural in its 
structure, but the law of organic life appears in it also — 

" More complex, is more perfect, owning more 
Discourse, more widely wise." 

• Kant finds the source and the necessity for these powers in the formula of 
.^ic, and they are presented as corresponding to its sequence. But they can 
Live their ground in no formal or empty conception, either in logic or law ; 
their ground is in the organism of the state, that is, the political organism, 
and their correspondence is to its real constitution. The presentation of Kant 
is consistent, however, with his formal conception of freedom and of rights. — 
RechUlehre, sec. xiv. 

" The exercise of power, whether by an individual or a nation, is naturally 
livided into thinking, judging, and doing. Action implies all three: thought 
..o originate, will and force to execute a conceived purpose, judgment to compar* 
it with rrJes cf conduct" — Fisher. The Trial of the Constitution, p. H. 



174 THE NATION. 

The tendency wMcli tliis conception constantly induces, 
in its correspondence with an empty and barren concep* 
tion of freedom, is to eradicate those institutions which 
have been estabhshed in the ampler organization of the 
state.^ The substitute, when all are swept away, is the 
reconstruction of the whole after some abstract scheme 
or some formal design. But freedom is not found in the 
vacant spaces which this devastating force has opened, nor 
in the sweep of their bleak and windy plains; the as- 
sumption again combines the conceit of individual egoism 
with the limitless caprice in which freedom is feigned to 
exist. 

There is also a representation of these powers, as simply 
a well adjusted balance, when each is of itself negative or 
merely restrictive of the other. A trivial and superficial 
description of their origin and relation is formed after this 
pattern. The nation is represented as identical with the 
formal construction of its government, and described as 
simply an association of men under laws ; then a power to 
make its laws must exist ; and as some power is required to 
execute them, an executive is established ; and then as an 
arbiter is required between them to regulate and settle 
their differences, a judiciary is established. This repre- 
sentation is defective, since it fails to define the content 
of these powers and their relation to each other and to the 
nation, and their subsistence in the unity of the nation. 
It is also destitute of an historical justification ; there has 
been no people the process of whose government it could 
presume to describe. Its postulate is a formal and mechan- 
cal conception of the state. 

1 " Nothing is more deceptive or more dangerous than the pretense cf a desire 
to simplify government. If we will abolish the distinction of branches and have 
but one branch, if we will abolish jury trials and leave all to the judge ; if we 
will then ordain that the legislator shall himself be that judge ; and if we plac3 
the executive power in the same hands, we may readily simplify government 
We may easily bring it to the simplest of all forms, — a pure despotism." - 
Webster's Works, vol. iv. p. 122. 



THE NATION AND ITS NORMAL POWERS. 175 

These powers are coordinate; that is, neither is so related 
to another, that it could be defined as in itself a negation, 
and as existent only as the insti-ument of another. Such 
a definition would make the action of a power mechanical, 
and would leave but one or two actual powers in the state. 
It would be incorrect to represent the judiciary as existing 
to receive the opinions and to justify the actions of the 
legislature, or to represent the executive as only the pas- 
sive agent and pHant tool in the hands of the legislature, 
and neither of them as having a determinate character 
of its own. 

Since these powers subsist in the organism of the whole, 
one cannot proceed from another, nor derive its content 
from another; each subsists in the being and immediately 
in the sovereignty of the nation. They are, each in its 
own sphere, invested with the power and formal sover- 
eignty of the nation. Each is not determined fr-om or 
through another, but, within the limitation of its necessary 
sphere, exists in the determination of the whole. Neither 
can assume to represent, in its isolation fr^om the others, 
the sovereignty of the whole. ^ 

These powers are coextensive ; they do not exclude each 
other, but each implies the other and the action of the 
other; and each acts in and through the whole. Thus, 
no individual and no section can be entirely isolated from 
them. 

These powers are correlative; not only neither has its 
gromid in the other, but neither has its ground in itself; 
its ground is only in the whole. Since they subsist in 
the nation they cannot be regarded as isolated and self- 
subsistent, but as existent in a necessary correlation. They 
are not separate sovereignties, but each is subsistent in 

1 "It should be remembered as an eternal truth, that whatever power is 
wholly independent, is absolute also ; in theory only at first, while the spirit of 
the people is up, but in practice as fasf as that relaxes." — President Jeflferson, 
LetUrs, Sept. 6, 1819. 



176 THE NATION. 

the sovereignty of the nation in its unity. They are con 
stituted not in a formal but an organic unity, and there* 
fore each is in necessary relation to the other, and is 
necessary to the completeness of the other. 

The common phrase, " a division of powers," may be- 
come the source of error and disaster. An actual division 
would imply the division of the nation itself, and the sever- 
ance of its sovereignty. The very assumption of a sole and 
entire sovereignty, by each or either power, would ten^, 
toward the dismemberment of the nation, through the ulti- 
mate strife of the one necessarily to subject the others to 
itself. The isolation of powers, neither of which subsisted 
in the sovereignty of the nation, but each of which, as com- 
plete and self-subsistent, held a barren sovereignty in itself, 
would make the realization of a national unity impossible, 
since the unity involved in sovereignty, would still strive 
to attain its necessary realization ; but this would become 
the occasion of conflict, and the actual and entire sover- 
eignty of the one power would be attained only in the 
subversion of the others. In the constant recognition of 
this fact there is the strength of each, and each is sustained 
in its normal action.^ 



1 The argument in The Federalist has for its object the refutation of the as- 
sumption of the entire isolation and severance of these powers, — it is the asser- 
tion of their necessary correlation. President Madison stated as its aim the prop- 
osition, — " that unless these departments be so far connected and blended as to 
give to each a constitutional control over the others, the degree of separation 
which the maxim requires as essential to a free government can never be duly 
maintained." — The Federalist^ No. xlviii. 

Of the consequence of their entire division Calhoun says, " Instead of a gov- 
ernment it would be little better than the regime of three separate and con- 
flicting departments, ultimately to be controlled by the executive in consequence 
of its having the command of the patronage, etc." — Calhoun's WwTcs, vol. i. 
p. 374. 

There is no exception to this statement in the writings of any eminent mod- 
em publicist. Bluntschli says, " The entire division of powers would involve 
the dissolution of the unity of the state, and the dismemberment of the political 
body." — Allgemeines Siatsrechts, vol. i. p. 450. 

" The error involved in the maxim *a division of powers ' is almost universally 
recognized in the science of politics, but it has not been until it has wrought th« 



• THE NATION AND ITS NORMAL POWERS. 177 

There is thus in the government, no aggregate of 
powers, but the manifestation of an inner and an ideal 
unity as it exists in the sovereignty of the organic people. 

These powers are the distinct powers of the civil and 
political organism. There is for each a distinct func- 
tion. As the error which would isolate them is destructive 
of unity, so also the error which would identify them is 
destructive of freedom. 

They are distinguished in their nature, in their content, 
in their form and object of action, and in their institution. 
They are also vested in diflPerent persons. To identify 
one with another, so that its own normal action should be 
suspended and its content determined by another, would 
subvert the development of the whole. 

The distinction of these powers, in the organization of 
the nation, tends toward the realization of freedom. It 
is in the formation of these relations that the freedom 
of the people is established. When the organization is 
imperfect, when, for instance, the sole power is vested in 
a popular assembly which enacts the law, and then enforces 
and administers order under it, and judges all cases that 
arise fi-om it, the result, in the construction of a power of 
unrelated and unlimited action, is an absolutism. And 

greatest confusion in theory and disaster in practice. It is refuted alike by the 
facts which have been adduced to sustain it, by logic and by the prudence of the 
state. Instead of the common endeavor toward the common good, it would 
result in conflict, and the antagonism of divided powers, and instead of stable 
freedom it would lead to anarchy." — R. von Mohl, Encyklopddie der Siaats- 
laissenchaften, p. 112. See also R. von Mohl's Liifrateur und Geschichte der 
Staatswissenschqften, vol. i. p. 397. Stahl, Philnsuphie des Eechts, vol. ii. sec. 
2, p. 198. Hegel, Philosophie des Eechts, p. 272. 

The interrelation of these powers in the constitution of England, in some re- 
spects, is one of its best results. The obligations of Montesquieu and of Hegel 
*o its study are well known. It is to be noticed that their closer interrelation in- 
creases the actual power and capacity of the Parliament, through its ampler or- 
ganization. Thus the Parliament and the Crown together constitute the govern- 
ment ; and the ministers of the Crown are the members of the Parliament, and 
the judges sit also as members of the Parliament, but with no vote, and the 
action of each may modify but does not control the action of the other, and 
the realized sovereignty of the state is only in thei- iLiity. 



178 THE NATION. 

when one power destroys the others, or assumes theii 
offices and capacities, or usurps their functions, and there 
remains only the unrelated and unlimited action of a single 
and separate power, the consequence is again the same, — 
the destruction of freedom.^ In the French Revolution, 
the legislative destroyed the executive power, and then 
the executive in turn destroyed the legislative, and this 
subversion of the organization of the whole left the way 
open to an imperialism. 

The distinction in these powers is illustrated in the fact, 
that while in each there is a field for the highest attain- 
ment, the special qualifications for each are different. He 
who excels in deliberation, is often lacking in executive 
force, and a speculative breadth of thought often brings a 
larger hopefulness than is justified by events ; and he who 
is clearest and firmest in action may often be without 
largeness of discourse ; and each may be wanting in that 
fair judicial spirit which is open to all sides. 

These powers therefore are not to be vested in the same 
persons, since they are so distinct that each demands for 
itself an exclusive vocation, and their offices in the modern 
state are obviously beyond the capacity of the same per- 
sons. Their reference in their offices to different persons, 
who are resident in different chambers, is itself, in the 
careful maintenance of their distinction, a guaranty of 
freedom. 

These powers in their organization cannot be too strong 
nor too great, since they have their origin in the civil and 

1 " Through Locke and Montesquieu, the great truth has been won, and it con 
stitutes their undying renown, that the participation of the different ele 
ments, in the exercise of the power of the state, and that too in its threefok 
functions, is the foundation of civil and political freedom ; and on the other hand 
when one and the same power, whether a prince or a popular assembly, alon* 
exercises all functions, despotism is the inevitable result." — Stahl, Philosophu 
des Rechis, vol. ii. sec. 2, p. 203. 

'' The accumulation of all powers, legislative, executive, and judicial, in the sam» 
Qands, whether of one, a few, or many, and whether hereditary, self-appointed, oj 
elective, ma}- justly be pronounced the very definition of tyranny." — Presidon 
Madison, The Federalist, No. xlvii. 



THE NATION AND ITS NORMAL POWERS. 179 

political organism , but it is a merely formal conception, 
wliicli is the premise of the phrase "an equality of 
powers." It assumes their division and then aims to 
estabhsh their equilibrium, regarding them as external 
forces to be pitted against each other. This predication 
of a formal equahty, as if between mechanical forces, 
fails of the necessary conception of the nation as organic. 
The phrase has no real significance nor consistent appli- 
cation, and it has to learn again the wisdom well nigh as 
old as the state itself, of the poHtical fable of the belly 
and the members. In the poHtical as in the physical 
organism, each member has its own functions, and the 
fidl and normal action of each is necessary to the normal 
action of the other and the normal being of the whole. 
The representation of the equahty of these powers has 
moreover no historical justification, and when they have 
been thus held and balanced against each other, the bal- 
ance has always been a varying and disturbed one, until 
in their entire separation, which the proposition assumes, 
an inevitable conflict has demonstrated the greater strength 
of some one pow ir. Thus in periods when the people is 
summoned to m st insurrection or invasion, the strength 
of the executive s more manifest, while in the subsequent 
construction of order the strength of the legislature ap- 
pears. In these succeeding periods, the assumption of a 
formal equahty of powers would tend to produce weakness 
or conflict, or to impair and retard the action of the whole. 
In the prudence of the state it is not the feigned or the 
constructive equality of the powers which should be sus- 
tained, but their necessary correlation, so that the action 
of each may promote and modify and not subvert the 
normal action of the other. 

The representation of these powers each as the neces- 
sary restriction to tlie other is imperfect. It has its premise 
\d the distrust of power as in itself evil, and i npht^s not a 



180 THE NATION. 

spirit of unity but of latent hostility and dread of each 
other. This proposition, as Hegel says, makes ill-wiL 
and aversion the foundation of the powers of the slate. 

The result is also negative ; there is only the formation 
of a system of checks, which also require other checks with- 
out end. The object set before each power is to reduce 
the other to a negation ; their construction is the adoption 
of the economy of a political house that Jack built. Since 
each, to use the common illustration, is the offset to the 
other, each is to be placed as .a makeweight in the opposite 
scale, but the balance, if evenly held, is a dead weight. It 
is constructive of nothing. Power implies energy, and 
each must act in its own normal conception, and is not to 
be apprehended primarily as restrictive of the action of the 
other. 

The character of these powers, and of their necessary 
relation to each other, appears in their relation to the physi- 
cal force of the nation, — its military. This embraces some 
of the most important principles in politics, and in the 
administration of the state. 

It is evident at the outset, that the organized physical 
force of the nation does not constitute, in correspondence 
with these powers, a distinct power in the government, 
since instead of being constituted in the moral organism 
of the nation, it is the physical force wielded by the nation, 
and it is not existent in a sphere in which it is self deter- 
mined as are the necessary and normal powers, and the 
law of its action is that of subordination. 

It is the organized might of the whole, — the nation in its 
unity and entirety ; in it men move in the highest personal 
spirit and freedom, and this is the root of valor, but the 
many as one, and therefore they march as an host, and with 
the accordance of music, and the ensigns and symbols of 
the unity of the nation. 

But its determination is in the nation in its political or 



THE NATION AND ITS NORMAL POWERS. 181 

ganism. Its members are citizens before they are soldiers ; 
if tbey were riot citizens they would not be soldiers. Its 
action is in conformance to a strict discipline. The au- 
thority which immediately directs it is by command. 

Of the nor nal powers of the nation, it is evident that 
the judiciary has no immediate relation to the military, and 
the military has none to it. The action of the judiciary, 
is only through a constabulary. 

The executive is the head of the physical force of the 
nation, — the commander-in-chief of the army and navy. 
This belongs to his office as the representative of the unity 
of the nation, and of its external sovereignty. The army 
and navy in actual service must also have a single com- 
mander-in-chief, since it cannot be directed in the field 
by a council or an assembly. But the executive, as com- 
mander-in-chief, is a part of the army, and in that capacity, 
as entirely in identity with it as any officer or private, and 
thus all that refers to the army and navy refers to him as 
officially included in it. 

If now this power of the executive as commander-in- 
chief were sole and supreme, the whole force of the na- 
tion would be constituted no longer necessarily in con- 
formance to law which is the normal expression of the will 
■)f the nation, but in subjection to a single individual will, 
and the result would be the institution in and over the 
nation of an imperial power. There would be in the formal 
constitution only a formal but not an actual limitation to 
this power, since on this assumption it could suspend the 
actual operation of the other normal powers. The power 
instituted would be imperial, whether hereditary or elect- 
ive in its origin. Its possessors might succeed each other 
as rapidly and irregularly as the elective emperors in the 
catalogues of the annalists of Rome, or each continue for a 
certain term of years or for life, but this would not change 
the character of their power. 

The subjection of the physical force of the nation, whoso 



182 THE NATION. 

principle rightly is that of subordination, to a single individ- 
ual will upon whose action there is in the organization of 
the whole no limitation, would tend to the subversion of 
the nation. It would no longer exist as an organism 
whose subsistence was in freedom, but there would be the 
sway of an individual will, to whose intent there was no 
limitation. 

The nation is constituted not in subjection to a singls 
individual will, but in the organization of and the obe- 
dience to law. Its freedom and rights have their institution . 
in positive law. Its force is to stand in and maintain the 
authority of law. To open before it another course would 
be the construction of a power which, in the exercise of 
its private opinion and fiat, would be above and separate 
from the law. The only and the ultimate authority which 
the nation recognizes is the law, and no citizen, nor soldier, 
nor lawgiver, nor ruler can be above and separate from the 
law. 

The clear discrimination of the military fr^om the civil 
and political powers, appears first in the later periods of 
Roman history. In so far as it places the soldier before 
the citizen, or makes the duty of the soldier precedent to 
the duty of the citizen, it indicates the utter destruction 
of national life and the construction of a physical force 
which had no ground in a moral order. But in the higher 
organization of the nation, the relation of the military — 
the organized physical force — to the law must be clearly 
defined. The imperialism which would leave it to the ulti- 
mate and unlimited control of a single individual will, also 
separates the soldier from the citizen, and is necessarily the 
subversion of the nation and its freedom. 

The military is therefore constituted and organized by 
law. Its immediate direction, which is by word of com- 
nand, is necessarily with its commander or commanders, 
but the ultimate direction of the whole, as the organized 
force of the nation, must be through law, and by no com 



THE NATION AND ITS NORMAL POWERS. 183 

mand can it be carried outside of the law. The ultimate di- 
rection then must be with that power, which, in the normal 
process, alone can affirm its will as law. The legislature 
certainly cannot assume executive functions, and the im- 
mediate direction is necessarily with the executive, but the 
executive in the capacity of a militaiy commander is in 
identity with the army and navy and simply a soldier of 
of the nation, although in rank the first soldier. The 
legislature is not to command the army, since its action 
is in the form of law and not of command, but since the 
assertion of the will of the nation is in the form of law 
and not of command, the ultimate direction must still be 
with the legislative power, and the military can never be 
carried beyond nor removed from its ultimate control. 

This object has been guarded and secured in many 
ways, and its constitutional guaranties and securities form 
the amplest illustration of the relation of the legislative 
power to the military. The legislative power alone can 
declare war^ and as implicit in this, alone can conclude 
peace. The military in all its ranks, and in the person of a 
private or captain or commander-in-chief, is immobile, until, 
as regards the operations of war, it is called to act by the 
declaration of the Congress. The legislature alone can 
"pro\"ide for the common defense," ^ and "raise and sup- 
port armies."^ The army and navy has no existence until 
the Congress shall form it. The legislature alone can pro- 
vide for the " organizing, arming, and disciplining " * cf 
the army, and alone can " make rules for the government 
and regulation of the land and naval forces." ^ To its gov- 
ernment and regulations the whole force is necessarily sub- 
ject. There is no officer, who by command can authorize 
their violation, and no member, either officer or private, is 
exempt from their operation, and as a soldier the executive 
is subject to the government and regulations which the 
Congress may adopt. The President certainly is the exec- 

1 Art. I «>ec. 8, cl. 2. * " Ibid. cl. 1. f Ibid. cl. 12. 

*/6trf. cl. 16. ^Ihid.chU. 



184 THE NATION. 

utive before he is the commander-in-chief, and has powei 
which is external to the latter office ; and no action by 
Congress in reference to the latter can encroach npon the 
sphere, or interfere with the immediate action of the presi- 
dential office. The legislature also alone can provide for 
the calling out of the military to " execute the laws, suppress 
insurrections, and repel invasions."^ It alone has control 
" by exclusive legislation, in all cases, over forts, maga- 
zines, arsenals, and dockyards." ^ There is certainly in 
the executive the power necessarily in every nation, to 
call out its force to execute laws, to suppress insurrection, 
or to repel invasion, and this becomes his immediate duty 
in the supreme necessity, but the constitutional limitations 
to this authority become the evidence of the residence of 
the ultimate direction of the military in the legislature. 
The Congress alone can maintain the army, and farnish 
the means and munitions of war; it alone can "support 
armies," ^ and make all appropriations for their sustenance, 
and thus the very condition of their existence is in the 
act of the Congress, and in the house which is in the 
more immediate control of the people. It is thus only by 
an act of the legislature that any soldier of the nation, 
from the commander-in-chief to the private, may obtain a 
single requisition of the war-office, or own a sword or 
carry a gun. Then also the appropriation which the Con- 
gress may grant is restricted to the term, when it again 
is subject to the election of the people ; " no appropriation 
for that use shall be for a longer time than two years." ^ 

The legislative power alone has the ultimate determina- 
tion, as to the declaration of martial law, or what in sub- 
stance corresponds to it, the suspension of the habeas cor- 
fus. Martial law, in ihe celebrated charge of Cockburn, 

1 Art. 1. sec. 8, cl. 16. 2 jud. cl. 17. 3 Jbid. cl. 12. 

4 Ibid. In the constitution of England, to which this clause correspond]^ 
the army and navy in this respect is subject to the Parliament, and tha 
Mutiny Bill, by which the army is organized, is limited in its operation t« 
one year, and is annually enacted at the session of Parliament. 



THE NATION AND ITS NORMAL POWERS. 185 

C'. J., is defined as "either the law of necessity, which 
will always warrant the use of violence by a state in self- 
defense, although the imperative nature of the case must 
be shown as a justification of the act, or on the other hand, 
military law to which soldiers alone are liable, and which 
is a system of fixed rules laid down by the articles of war ; 
beyond this," he adds, " there is no such law in existence 
as martial law, and no power in the Crown to proclaim 
it." 1 

The power to establish martial law, in the latter sense, 
belongs expressly and exclusively to the Congress, since it 
alone can "make rules for the government and regulation 
of the land and naval forces." The power in the former 
sense must belong also in its ultimate determination to the 
Congress. The declaration of martial law in this sense, 
is in substance the same as the suspension of the habeas 
corpus^ since each is the formal assertion of the right of 
the nation in its supreme necessity, the one being the form 
in which it is established in Germany, France and Italy, 
while the other is its form in England and the United 
States. 

The declaration of martial law, or the suspension of the 
habeas corpus^ is the intermission of the ordinary course of 
law, and of the tribunals to which all appeal may be made. 
It places the locality included in its operation no longer 
under the government of law. It interrupts the process 
of rights and the procedure of courts, and restricts the 
independence of civil administration. There is substi- 
tuted for these the intent of the individual. To this 
there is in the civil order no formal limitation. In its 
immediate action, it allows beyond itself no obligation and 
acknowledges no responsibility. Its command or its decree 
is the only law ; its movement may be secret, and its 

1 The Queen vs. Nelson and Brand. London : 1867. Martial law is defined 
fts " the will of the general who commands the arary." — Digest, p. 130. Wai 
Department, 1866. 



186 THE NATION. 

decisions are open to the inquiry of no judge and the in« 
vestigation of no tribunal. There is no positi^^e power 
which may act or be called upon to act, to stay its caprice 
or to check its arbitrary career, since judgment and execu- 
tion are in its own command, and the normal action and 
administration is suspended, and the organized force of 
the whole is subordinate to it. 

The power which appears in the suspension of the 
habeas corpus is a necessary right. It is the assertion of 
the right in the supreme necessity of the state and in the 
imminent or immediate peril of the people to suspend the 
ordinary process of rights. It is the right of the nation 
which is precedent to the rights of the individual or the 
community. The inquiry has been, as to its residence, 
in the legislative or the executive power. The evidence 
of its ultimate residence in the former, appears in its 
nature, in its historical institution, and in the conditions in 
which it may be formed. 

It is a right of the nation in its sovereignty. But there 
is always implied in sovereignty the conception of law, and 
the legislative power is the only one which in its action can 
affirm its determination as law. Thus Blackstone says : 
"sovereignty and legislation are convertible terms, and 
one cannot subsist without the other." This power, more- 
over, is the only one, the nature and method of whose 
action tends in itself to exclude the arbitrary. Thus, as 
the act of the sovereignty of the nation in its highest 
expression, it is to be presumed that this is not wholly 
withdrawn from the legislative power. Its reference to 
the legislature would also correspond with the residence 
of the sovereign rights of the nation, in immediate analogy 
with it, as for instance, the declaration of war. 

The government is, morever, in its normal structure, 
a government of laws. If then the legislature by its owe 
enactment suspends the ordinary action of the government 
there is still, in its ultimate conception, the continuance of 



THE NATION AND ITS NORMAL POWERS. 187 

.aw, and as tlie power from whicli the law proceeds de- 
clares, by its enactment, the suspension and then the resto- 
ration of the habeas corpus, there appears still, in the pcx^- 
manent and substantial order, the maintenance of law. 
The act is divested of its apparent antagonism, and wears 
no longer the appearance of a civil cataclysm. But to 
refer the suspension of the habeas corpus to the executive, 
seems an immediate contradiction to the normal process of 
the nation and the subversion of its order. 

To refer this office to the executive might, in fact, 
occasion the negation of the other normal powers, as in 
their process they became subject to the single power in 
whose exclusive control this act was placed, and by whom 
it mio-ht alone be exercised. The form miffht remain, and 
the judicial power could still open its courts, but the act of 
the executive would decide if any might seek their pro- 
tection, and the legislative poAver could continue its ses- 
sions, but all laws might be rendered inoperative by the 
sole actual power, the executive, — " the will of the com- 
mander-in-chief as general, commanding the army." It is 
not implied that, if the action were vested in the executive 
power, it would remove the other powers, since this would 
be the subversion of the organization of the nation, and the 
destruction of its constitutional order ; but this would not 
be requisite to its design, since the act of the executive, 
in so far as it might elect, would be, in fact, an absolute 
veto upon the action of the other powers, and would en- 
able the executive to avoid all laws enacted by the legisla- 
ture and all decisions of the judges. 

If, moreover, the executive alone held this office, it would 
allow an individual to originate a condition of affairs, in 
which not cnly an individual will could act without control, 
but the will would be the same which originated the con- 
dition. The act and the whole suosequent power resultant 
from it, would be referred to the same department of gov- 
ernment, and that resident in an individual. It would not 



188 THE NATION. 

be possible for a people to construct a broader higbway foi 
a tyrant to come in. It would concede the assumption of 
all power beyond all actual limitation, to an individual 
The political body can scarcely contemplate the possibility 
thus, of the accumulation in the hands of one person of ah 
its powers, beyond its normal control and in the cessation 
of its normal process. 

The whole body of rights, moreover, in which freedom 
subsists, both civil and political, is in the process of positive 
law, and to allow its suspension to an individual who then 
could alone determine the continuance of the period of that 
suspension, is not only what the nation could not concede, 
but it is a power which no member of the nation should 
possess, since the inevitable disaster which follows ail 
arbitrary action is too great and the contingency of such 
action in the weakness and the aberration of the individual 
is too near. 

The highest guaranty of the freedom of the nation, and 
the prudent limitation to this act is in its being so con- 
strued that the suspension of the habeas corpus by one 
power shall require the immediate transfer of all authority 
under it to another and separate power. The legislature 
in suspending the habeas corpus does not assume the re- 
sultant authority, but refers it to the executive, from whom 
in its discretion, it may withdraw it. 

There is the necessity for the most carefrd and yet the 
most ample provision, for this act and the exercise of this 
right, in the constitution. It is a right of the nation in its 
sovereignty, and it has been held and exercised by every 
historical nation. There has been none but has been 
called to pass through crises, when the evil forces assailing 
its life and unity were so many, or their attack so sudden, 
that the omission to exercise it would be the abandonment 
of the plainest political obligation, and the impotence ana 
crime of government itself, and might involve the ultimate 
md lasting subversion of all rights. And yet, since the 



THE NATION AND ITS NORMAL POWERS. 189 

legislature cannot always act with the immediate energy 
which may be demanded, and does not act continuously, 
in its supreme necessity, in the actual or in the imminent 
peril of the nation, it becomes not only the office but the 
imperative duty of the executive to assert it. But the 
action of the executive in its assertion is here subject to 
certain definite limitations ; firstly, it should assume under 
no pretense whatever control over the legislative and ju- 
dicial powers, to obstruct their organization, or to approach 
the persons of those in whom these powers are vested by 
the people ; and secondly, the legislature should be sum- 
moned, if not in session, it may be by the act itself, and the 
imperative necessity of it should be made to appear, and 
its justification presented; and when the latter has been 
rendered, an act of indemnity may be granted by the legis- 
lative power, the process of whose action has been sus- 
pended, and the further conclusion as to the continuance 
of the suspension of the habeas corpus revert to the legis- 
lative power.^ 

But the investiture of the legislative power with thia 
right illustrates, also finally, the residence in it, of the ulti- 
mate direction of the military, since, excepting as the duty, 
with definite limitations, is for the moment imposed upon 
the executive, the legislature alone can call the mihtary 
into action. There can be between these normal powers 
indeed no actual conflict, except in the most awful crime, 

1 In the constitution of England, the Parliament alone has the power to sus- 
pend the habeas corpws, but, in the interval of its session, or if necessity demanded 
sudden and secret action, during its session, the ministers of the Crown have 
exercised the power; but it has been always followed by the solicitation of a 
bill of indemnit}'-, and the consent of the Parliament has been held requisite to 
justify it, and since the statute 31 Charles II., this has been always asked and 
allowed. 
Sir Edward Coke said in the first Parliament of Charles I., of the king's claim 
" a right to imprison, and of the decision cf the judges, " What is it but to 
declare upon record that any subject committed oy such absolute command may 
be detained in prison forever? What doth this tend to but the utter subversion 
of the choice, liberty, and right belonging to every freeboni subject in this king- 
dom? A Parliament brings judges, oflScera, and all men into good order-" 



190 THE NATION. 

and then, in the destruction of the organization of the nation 
by the very powers called to act in its constitutional order 
the individual is thrown back upon himself, and each has 
only to remember that he is a citizen before he is a soldier 
and only a soldier because he is a citizen. 

The more perfect organization of the legislative, ex- 
ecutive and judicial powers in the government is attained 
in the long historical development of the people, but their 
institution is the first object of the constitution. 

The immediate aim is that they shall not be severed, 
so that there shall be an isolation that induces alienation 
between them, and that they shall not be merged, so that 
their separate functions shall be impaired, but their con- 
struction is to conform to their nature and correlation. 
Since they are the manifestation of that which is immanent 
in the civil and political organism, the constitution may 
define, but, as it did not create, it cannot change their nature 
nor their attributes. They are not the product of a polit- 
ical empiric, and the ingenuity of no individual and no con- 
vention can make them other than they are. The change 
of these powers in the being of the nation would presume 
the change of the nature of the reason and judgment and 
will in man. They are as in a musical notation, where the 
eparate notes are necessary to a full harmony, and yet 
these notes are not the creation of art, nor could art change 
them, and it is thus that the powers of the state are de- 
scribed by Shakespeare, " as converging to one natural 
close, like music." 

The constitution is to describe these powers and their 
limitation, but their strength, in which each is involved 
with the other, is in their construction, according to their 
unity and necessary correlation, and their formal description 
apart from this will not avail much. Their action can be 
determined in the words of President Madison, by " no mere 
demarcation upon parchment." Mr. Hamilton says, alsc 



THE NATION AND ITS NORMAL POWERS. 191 

" is all external provisions are found to be inadequate, the 
defect must be supplied by so contriving the interior struc- 
ture of the government as that its several constituent parts 
may, by their mutual relations, be the means of keeping 
each other in their places." ^ 

The sphere of each in its limitations is to be so construed, 
that the legislature shall not execute its own laws, nor de- 
cide in a conflict of rights under the laws; and the ex- 
ecutive shall not decree its own will as law, nor decide in 
a conflict of rights ; and the judiciary shall not establish its 
opinions as laws constructive of the political order. The 
legislature alone can enact laws, and its act, by the veto 
allowed the executive, is detained and restricted, but it is 
not imperatively determined, and its enactment is to be 
thereafter enforced by the executive, and to be applied by 
the judiciary in judgment on cases where controversy arises 
under the laws, but the legislature cannot assume the ex- 
ecution of laws, nor intervene to conduct their immediate 
administration ; it can not render judgment between parties, 
nor forbid a judicial procedure so as to impair the vindica- 
tion of rights, and the only case which can be brought before 
it, is that in which the senate is constituted as a court, if 
the people shall appear with charges against the executive 
or the judges. The executive is to execute and administer 
the laws, and it has in its veto the quahfied restriction of 
legislative action, and is to communicate to the legislature 
whatever may concern the state of the nation, but it can- 
not be summoned before the legislature, except on the pres- 
entation of charges for its impeachment. The judiciary has 
its province most clearly deflned, since its action is in judg- 
ment, and judgment is only of force as the expression of 
conviction, and as subject to no external control ; its 
decision in all cases is final of those cases, and in its final 
judication is open to no revision 

These powers in then' organization are to be shaped 

1 The Federalist, No. ii. 



192 THE NATION. 

through history, in the patient toil which will care most 
that nothing of value received from the past be allowed 
to perish, but will hold their construction in any moment 
as very far from perfect. 

The interrelation of the powers is to be so defined, that 
neither shall be isolated from another to become its oppo- 
nent, nor subjected to another to become its instrument. 
The action of either, when, in its alienation, it becomes the 
impediment to another, will result in the weakness of the 
government, and tend to the corruption of the whole. If 
their interrelation is not clearly defined and established, 
there will be, through vagueness, a greater risk of diver- 
gence, or their action will proceed withoiit dignity or decent 
respect, or through irregular channels, or with undue influ- 
ences. 

There will be the resort also to special and temporary 
devices and contrivances by the one power to hinder or 
control the other. While the mode of communication be- 
tween them is not clearly established, slight and irreg- 
ular means will be introduced. Then the condition of 
affairs is ascertained through private channels, or the 
casual testimony of investigating committees. The exec- 
utive becomes only the man at the other end of the avenue ; 
but the legislature is then only a crowd of men at this 
end of the avenue. The confusion is increased, and the 
relative strength of the powers is disturbed by the neglect 
of the legislature to organize a civil service, so that the 
executive has a vast preponderance given to it in certain in- 
tervals. But the most obvious danger is in the too wide 
separation of the legislative power from the executive and 
the judiciary. The isolation of the latter from the legisla- 
tive power, becomes the source of indifference in the legisla- 
tive power to them, and then of their weakness, and in the 
consequent disorganization, there is the defect of the whole. 
Thus Stahl says, " the complete isolation of the executive 
strips it of everything and makes it the tool of the legisla- 
tive power." 



THE NATION AND ITS NORMAL POWERS. 193 

The high offices of a minister of a department of admin- 
istration, are imperfectly organized. Their growth and 
number are beyond the provision of the constitution, and 
are to be determined in the historical necessity of the state. 
While their immediate relation and administrative respon- 
sibility is to the executive, they are more than merely its 
registrars. It has been suggested that the ministers of the 
executive, in conformance to some modern political consti- 
tutions, should sit in the chambers of the legislature, but 
without a vote, and a member or attorney of the judiciary 
should also sit with them, but without a vote. This might 
improve legislation, since it would give to the legislature a 
higher strength in its ampler and more complex organiza- 
tion, and aid toward the removal of the breach between 
the powers, and open clear and definite means of com- 
munication between them, instead of the vague and in- 
definite, and therefore perilous ways which now alone exist. 

The legislative, executive and judicial powers, in their 
formal organization, constitute the government. 

The legislature is the precedent power in the govern- 
ment. Since the government is of law, and the assertion 
of the sovereignty of the nation is in positive law, the 
power which can alone constitute its determination as law, 
in its relation to the other powers, is necessarily precedent. 
It is not, that these powers do not each subsist immediately 
in the sovereignty of the nation, and it is not, that the other 
powers are subordinate, since the action of each, in its own 
sphere, can neither be directed nor determined in its con- 
tent by another ; but in the normal process the inception 
of civil and political action is in the legislature. It is 
not the power which executes the law, nor the power 
which interprets the law in adjudging cases under the 
law, but the power which in its nature can enact its will 
as law, that in the formative process is precedent. 

The legislative power nas the defnition of its sphere of 

13 



194 THE NATION. 

action and the enumeration of its special powers in the 
formal constitution, but the objects of its action exist only 
in the change and circumstance of history. It alone is con- 
structive, and alone can act with a reconstructive power 
in the historical crises which come to every nation, for 
which it is not in the capacity of a formal constitution 
to provide, and for which it could no more prescribe than 
it could predict the circumstance of history, — epochs which 
no individual prescience could anticipate and no expiring 
convention could forestall. The political course is not to 
be shaped by an executive decree, for this, apart from 
law, is authority for no man, nor by a judicial decision, 
for this has only a revisionary power, but in the process of 
law, and therefore by the power which alone can enact its 
will as law. The recognition of authority, in the formative 
course of the nation, in any other form than as law is 
anarchic, and is the inauguration of an imperial power. 
It is to law alone that every individual, both the power 
that makes and the power that executes the law, is subject. 

The distinction between the constitution and the laws is 
indeed fundamental ; but it is to be considered that the 
formation of the constitution is in its nature a legislative 
act, as the constitution, when formed, is the supreme law, and 
every amendment is also in its inception a legislative act. 

The legislative power is regulative of the order and 
organization of the other powers, in so far as this is not 
defined by the constitution, but is left to be determined in 
the continuous process of the state. The other powders, in- 
deed, subsist with it in the organic constitution. It did 
not create them, and it can neither nullify them, nor assume 
their functions. Because they are subject to its action as 
law, it does not follow that they are subordinate to it, 
since it also is subject to law ; this does not reduce the 
executive simply to an instrument of its intent, and the 
judiciary to a registrar of its opinions.^ 

i " To prevent collision in the action of the government, without impairing 



THE NATION AND ITS KORMAL POWERS. 195 

There is also, in the representative structure of the legis- 
lative power, a vested authority, in relation to the other 
powers, which the j have not to each other nor to it. Thus, 
on an alleged violation of his trust, it may summon an 
executive or a judicial officer before it, and if a high 
crime or misdemeanor is proven, he may be convicted 
by it ; but no other power has a corresponding office, 
and it alone can judge its own members, and determine 
their quahfications. It also holds those who are to fill the 
judiciary subject to its confirmation, and a vacancy in the 
executive, in certain circumstances, may be filled by it, 
but if any occur in itself, it must be referred immediately 
to the people. It also is to receive from the people the 
announcement of an election of the President, and to 
induct him into office. 

The more perfect structure of the legislature has been 
the index of the progress of the political spirit of the peo- 
ple. In the higher political development its organization 
has become ampler and it has embodied more varied ele- 
ments of strength. This has been the principal aim of 
modern political constitutions. The effort has been also to 
make it more free, and less subject to repressive legisla- 
tive codes and rules, without impairing its power of com- 
ing to a conclusion. But the construction of the legisla- 
tive power, its history, its order, its system of rules, the 
number of which it should consist, the form of election, 
the duration of office, the dual system of houses, and the 
like, is a special study.^ 

the independence of the departments, all discretionary power was vested in the 
egislature. Without this, each Avould have had equal right to determine what 
\x)wers were necessary and proper to carry into execution the powers vested in 
it, which could not fail to bring them into dangerous conflicts." — Calhoun's 
Works, vol. i. p. 346. 

Bracton said, " The king ought not to be subject to man, but to God and the 
law." Christian cites Year Books, 19 Henry VT. 31: ' The law is the highest 
inheritance which the king has: for by the law he himself and all his subjecta 
ftre governed, and if there was no law there would be no king and no inheritance." 

^ Bluntschli says, but it is to be noticed tVa: the executive is regarded as in* 



196 THE NATION. 

The executive is the power to which belon^'s the exe- 
cution of the laws and the administration of affairs. It is 
in immediate direction of all the departments of adminis- 
tration. It is the head of the army and navj, and in 
command of them for internal order and external defense. 
But the name — the executive — imperfectly indicates the 
character and dignity of the office and even its relation to 
the other powers. While it is entirely in subjection to 
law, and cannot pass beyond the law, it far transcends 
the office of a merely executory instrument of the legis- 
lature. Nor can it be described even as the exclusive 
executive, since in the ordinary course of affairs the 
law is not executed, but is pronounced and appHed by 
all concerned, or more strictly, the law may be said to exe- 
cute itself, since the proclamation is presumed to be iden- 
tical with the execution.^ The name still less indicates its 
relation to the judicial power, since the execution of the 
judgment of the court is in the immediate authority of 
the court, which acts through its own constabulary, and it 
is only in its discretion that it may call for the aid of the 
executive. While imperfectly denoting the relation to 
these powers, the name is itself dry and formal, and sug- 
gestive rather of a pedantic and scholastic distinction ; 
there is in the office a far larger conception that embraces 
higher duties and trusts. 

It is representative of the unity of the nation, and its 
i\nity in personality. It is therefore vested in one person. 
It is representative of the majesty of the nation, and it is 
to preserve and protect and defend the constitution in the 
unbroken supremacy of law. It is representative of the 

tegral with the legislative power, " Die gesetzgebende Gewalt bestimrat die Stats- 
und-Rechts-ordnung selbst, und ist ihr hochster, das ganze Volk umfassender 
A-Usdruck. Alle andern Gewalten iiben ihre Functionen innerhalb der beste- 
henden Stats-und-Rechts-ordnung in einzelnen concreten und wechselenden 
Fallen aus."^ — Allgemeines Statrecht, vol. i. p. 452. 

1 The signature of the executive is always presumed to be upon a law, and 
indicates something of its necessary relation to the legislature, and while it i| 
only a form, it yet has a significance, and would be insisted on by one wha 
guards the executive office. 



THE NATION AND ITS NOKMAL POWEKS. 197 

organized might of the nation, the power of the nation in 
its totahty. It is therefore the head of the army and 
navy. It is representative of the nation in its external 
sovereignty, and the nation acts immediately through it, 
in its relation to other nations. It is tlirough it alone 
that all communication with other nations proceeds, and 
it alone is to receive ministers and embassies from them, 
and is to send its own to them. It is representative ot 
the nation in its unity, beyond all interests and sections 
and factions and parties, and is in identity with none of 
these, but in immediate relation to the people in its entirety. 
It is representative of the relation of the nation to every 
person who is a member of the nation. This has had 
no higher exemplar in the life of nations, than President 
Washington and President Lincoln. They kept a conscious 
relation to all, and they heard the petitions of all the people. 

In the conscious life of a free people, it is a power which 
is not left to be determined — if that word may be applied 
in this connection — by any accident, and it is not restricted 
to a single line of family descent, but he who is called to 
. t is to be called of the whole people. There is no form 
in the barbaric constitutions, and no type drawn from the 
confusion of the changing conditions of the feudal age so 
noble as this, in which the nation is manifested in its 
moral being, and no imperialism has such elements of 
strength as this, in which there is the representation of the 
nation in its conscious purpose, and in the recognition of 
the majesty of law. The inauguration of its power, is 
the expression of the conscious determination of the peo- 
ple, and in the fulfillment of law. 

It is to guard the unity of the nation, and to protect the 
people and the land in all perils. Since the judicial power 
is withdrawn by its process from immediate action, and 
the legislative power is without the continuous action and 
the capacity for immediate action, which some sudden or 
imminent peril to the nation might demand, it becomes its 



198 THE NATION. 

duty and power, in the emergency, in tlie defined limits of 
the constitution, to suspend the habeas corpus^ and to call 
out the armed force of the nation ; but the provision for 
this act is to be so clear that it may not become in itself 
a source of peril. 

It represents the might of the whole in its relation to 
the individual, and in it the nation stands forth in its unity 
on the approach of insurrection from within or invasion 
from without. It holds for the individual the power of 
pardon, and this is always its prerogative. 

There has been through all the conflicts of history the 
exhibition of no quality in the sovereignty of nations, 
which does not belong to it, and there has been no tyranny 
but is alien to it. Its authority is in the supremacy of law 
and its power is in the majesty of the nation. The phrase 
is, the king can do no wrong, and it has a deep signifi- 
cance in the assertion of the sovereignty of the nation as 
subsisting in its being as a moral person ; and every act 
which does not proceed from this, or is in variance with 
this, is unkingly.^ 

The construction of the executive power was widely 
considered in the formation of the constitution. The con- 
ditions of its organization were, that he who was called to 
it should be called from the whole people, and that it 
should be left to no accident. There was the suggestion 
of various forms, as its entrustment to an elect council, 
or to a person elected from the legislature and responsible 
to that, and its duration for life or for different terms. 
The proposition adopted was its investure in one person, 
elected 'by a college, which was elected by the people; 
and the term of ofiice, open to a reelection, was four 
years. The project of an electoral college failed, continu- 
ing only as a form, and it remains as an illustration of the 
want of inherent strength in a constitutional form which 

1 "He that does injustice dishonours the king." — Samuel Mulford, 17H 
Doc. Hist of N. T. Yol. iii. p. 371. 



THE NATION AND ITS NORMAL POWERS. 199 

does not correspond to the purpose of the people, since 
in every election some name has been immediately before 
the people. This course alone has an historical justifica- 
tion. It has been truly said, that the people can best 
appreciate great services to the nation, and great qualities 
in action, and they are without the envy and the prejudice 
of the narrow circles of cliques and parties, and no sepa- 
rate interest as of a certain family or a class prevails with 
them, and they are indifferent to the private ambitions of 
great men. 

The executive power in its organization is vested in one 
person, and no other form is consistent with it. The plan 
of an executive council was sustained by Milton in his 
description of a free state. It was the constitution of the 
executive in the triumvirate of Rome ; but its inter- 
nal dissension illustrated the defect of a plural system. 
It was established in France, in the directory of five ; but 
the want of unity and decision, and the variance in this 
collegial rule, opened the way to the power of the First 
Consul. There is an inevitable weakness in the assumption 
of executive power by a college, as a senate or parliament. 

The higher organization of the executive power comes 
in the historical development of the people, giving to it 
greater strength, and a more perfect correlation to the 
other necessary powers in the nation, and its better con- 
ception is gathered from the work of those who fill it best. 

The judicial power has its sphere in the interpretation 
and appHcation of laws in a conflict of rights. It renders 
judgment in a controversy in law between man and man, 
md man and the state. Its conclusion is an opinion in 
pursuance of which decision is made, which is final in 
respect to the status of the parties concerned. In order 
to its action, a case must be .aid bef'^re it, and judgment 
is given botween parties in dispute. Its procedure is in 
a court. 



200 THE NATION. 

It IS withdrawn from the military, and can execute its 
decisions only by a constabulary. " The judiciary," says 
Mr. Hamilton, "has no influence over either the purse or 
the sword ; no direction either of the strength or of the 
wealth of the society ; and can take no active resolution 
whatever. It may truly be said to have neither force nor 
will, but only judgment." 

Its decision is not a law, but a precedent from which 
its subsequent action in all corresponding cases is pre- 
sumed, but by which it is not imperatively determined. 
Its decision is a finality, in the case considered, and is 
beyond even its own revision. It would be a digression 
to inquire into the nature and philosophy of a precedent 
in law ; but as the conception of rights is widened in the 
increasing freedom of the people, and com-ts change, and 
the wisdom of the application of the law is not perfect and 
does not reach a finality, it may follow that precedents are 
annulled or avoided with the process of time, as with the 
action of courts ; and yet, in a conflict of rights, a prece- 
dent is rightly presumed steadfast, and to settle affairs for 
all time. 

The inquiry of special importance as to the judicial 
power is in reference to its relation to the other powers, 
and the political sphere which has been assumed for it. 

The organization of this power, in conformance to its 
nature and end, is judicial. Its structure is that of a bench 
of judges, and not of a representative order. It is estab- 
lished as a court, and not as an assembly of the people. 
If it were invested with positive political power, it would 
necessarily be formed as representative in the political 
constitution ; if it were invested with ultimate political 
power, it would be formed from and of the whole 
political people. In the election of those who were to ex- 
ercise its office, the people would not be restricted to a 
single profession or class, as that which is variously 
described as solicitors, proctors, attorneys, counsellors 



THE NATION AND ITS NORMAL POWERS. 201 

lawyers, but it would be composed from the whole people, 
and fr'om them there would be drawn scholars and artisans, 
and farmers, and tradesmen, and economists, who, no less 
than lawyers, have their sphere in the process of the polit- 
ical people, and are to act in its decision. 

The concession to the judiciary of an ultimate decision 
in the political sphere, would be the reference of the des- 
tination of the state to a regime of lawyers, and, as it is 
now organized, to a power which is not responsible to the 
people, and holds its position for life, and whose action is a 
precedent which is presumed to be final and beyond rever- 
sal, and whose opinion is a decision from wliich there is no 
appeal. Then the historical progress of the people would 
be traced no longer in the better institution of rights, and 
the broader freedom, and the more varied organization of its 
powers, but in judicial decisions rendered, it may be, upon 
feigned issues and pronounced over contending Htigants. 
Then the crises in the political life of the people would 
await for their event, the process by which a case could 
be made up and brought into court, and the development 
of the state would be shaped by an exclusive profession or 
class, and that one which is of all the most superstitious, 
and superstitious of the letter. It is the poet, and not the 
historian of laws, who says that freedom broadens from 
precedent to precedent. 

The nation also exists in the conditions of an historical 
development, and therein is the on-going of its power, 
but the action of the judiciary is retrospective. It is 
invested with a re visionary but not a constructive power. 
It can only consider a case which is brought before it, and 
pass judgment upon that. It is, in the rendering of judg- 
ment on a case, to say what the law is, but not to say 
what the law shall be. The formative political power be- 
•ongs only to the power which is representative of the 
political will. 

The form and procedure of the judiciary also precludes 



202 THE NATION. 

its exercising an ultimate political determination of the 
destination of the political people. It is incapable of the 
functions which the proposition demands. " It is," says 
Kent, "to determine the supreme law whenever a case is 
judicially before it." The fact that its action is limited 
to the case before it, is the evidence that this power is 
beyond its capacity. The vastest changes and crises might 
follow in swift succession, and yet give rise to no case, 
nor involve in a special controversy, contending litigants. 
The actual course of events would not await the constant 
construction and conclusion of feigned issues, and yet, the 
judiciary is silent, until the consideration of a case opens 
its lips. These feigned issues would also render the house 
of judges only the moot court for the examination and 
trial of political theories. 

The construction of feigned issues by the legislature, 
which it is to refer to the judiciary, is indicative of the 
bias of jurists, and not the constructive grasp of statesmen. 
It would be as consistent, in the difference of opinions by 
the judges, to refer the conclusion to the legislature. It 
would involve peril, also, in the subversion of the integral 
character of the legislature, since, while it might avail as a 
temporary device, there must be but one power to enact 
laws, and this power can suffer no evasion of its responsibility. 

The reference of this office to the judiciary is inconsistent 
with the normal institution of law in the political organism. 
In the political order law subsists in the consciousness of 
the political people. The determination of the individual 
must be the assertion of a conscious power, and obe- 
dience to the law must be a conscious act. Therefore the 
deliberation of a political assembly is public, and the law 
is published and presumed to be in the knowledge of all. 
But the formation of judicial opinions is private, and the 
study of these apmions and precedents, and he examina^ 
tion of the decisions of courts, demands the prolonged and 
aborious research of an exclusive profession. To allow tc 



THE NATION AND ITS NORMAL POWERS. 203 

these opinions and precedents the ultimate determination 
of the political order, is to dissever it from its basis in the 
conscious spirit of the political people. It is as if the laws 
were to be hidden in costly and obscurely written tomes, 
and required the interpretation of a special craft. They 
would be as completely withdra^vn from the conscious life 
of the people, as the laws of the tyrant which were recorded, 
but so high that none of the people could read them. 

The special scope of the judiciary is indicated also by 
the qualities demanded for it in contrast with the work of 
the statesman. These qualities can only be described as 
judicial. The breadth of thought and the prescience of the 
statesman have not in the judiciary their immediate field. 

But the opinions of the judiciary cannot be regarded as 
the power determinative, in its ultimate action, of the des- 
tination of the state, nor accepted as the finality in its 
course, since this would be inconsistent with its existence 
in the realization of the freedom of the people. To make 
the opinions of the judiciary a finality in the political 
order, would fetter the free spirit of the people, confining 
it, not in the assertion and recognition of law, as the 
determination of the organic will, but in the conformance 
to a mere legality. The past by its precedents would im- 
pose its authority upon the present. The energy of the 
people perishes when precedents become the substitute for 
the action of a living will and the strength of a living spirit. 
The Israel which once had kings and prophets, has then 
only Rabbis of the law.^ 

1 " The law spoke to each man individually, bound him to his fathers, bound 
him to those who should come after him; it united him to every member of 
his nation. Suppose that law reduced to a mere collection of letters, written on 
stone or in a book, yet invested with all its traditional sacredness ; suppose it 
changed from the witness of a nation's vitalit}', into the witness of a glory that 
has departed; suppose a set of men possessing hereditary claims to I'everence, 
untiring diligence, much acuteness, devoting themselves to the task of expound- 
ing this law, — suppose this and you have probably the best conception you 
can get of the Rabbinical casuistry, an i its immediate influence upon the min<^ 
of a people, crushed and fallen, but full of grand memories, seldom quite de- 
lerted by an inspiring hope." — Inaugural Lecture, by the Rev. F. D. Mauricd 
Cambridge, 1866. 



204 THE NATION. 

There is a proposition connected with this which refers 
to the judiciary, the preservation of the constitution, as 
an exclusive province, regarding its final interpretation aa 
obligatory upon the other powers, and placing it as an 
arbiter over them, to confine them in their constitutional 
limitations. This also is inconsistent with its character, 
and is an office which belongs to no separate power, and 
involves a misconception of the relation of each and of the 
whole. It is in its province to interpret the law in every 
controversy in rights which is brought before it, and it 
may hold a law invalid in a certain case, because in con- 
flict with the constitution which is also a law, and to which 
every enactment of the legislature must yield. Its decis- 
ion is final only of the case in controversy, although held 
to apply to all corresponding cases. Its decision is to be 
received by the executive and by the legislature with the 
highest deference, but it is to be accepted by them, in their 
action, only in so far as their judgment may approve and 
confirm it. 

The judiciary would also fail as a final arbiter, since no 
power is constituted to act as arbiter over the others, but 
each is to conform to its own normal sphere, and the avoid- 
ance of conflict is to be found only in their interior struc- 
ture and their interrelation in the whole. This would also 
impose upon it a duty which it could not fulfill ; it would 
refer the final arbitrament to the inherently weaker power. 
It is withdrawn fi:om the military, and has the least abihty 
to enforce its decisions. Its endeavor would be futile, 
since the mandamus of the court, if issued to the President 
or the Congress, would of necessity be disregarded. 

To ascribe this province to the judiciary and to impose 
its decision upon the legislative power as a finality would 
make the latter subordinate. The judiciary would control 
t;he legislature, and its opinions might become the substi- 
tute for laws in the political order, and its decisions super- 
jede legislation. It would be as consistent to give the 



THE NATION AND ITS NORMAL POWERS. 205 

legislature the revision in certain cases of the opinions of 
the judiciary, and to make that revision obligatory. 

The reference of this province to the judiciary is a polit- 
ical solecism, and has no historical justification. Its only 
parallel would be the power of rabbinical opinions, in the 
decay of the national life of Judaea, and the influence of 
the jurisconsults in the decadence of Rome. Blackstone, 
in defining this assumption, says, " To give to the courts 
the power to annul the laws of parliament were to set the 
judicial power above that of the legislature, which would 
be subversive of all government." ^ 

It would be also an imperfect arrangement, since the 
judiciary, when involved in a conflict, is left with no arbi- 
ter over it, and there is no pro vis:' on against its encroach- 
ment upon the other powers, and its assumption for 
instance, of legislative functions. It places an arbiter be- 
tween two parties; but it is a third party and is also 
concerned. Story says, " a declaratory or prohibitory law 
would be the remedy ; " but the judiciary alone would be 
the interpreter of this law, and might set it aside, and in 
a decision beyond appeal. 

To allow to the judiciary a decision upon the validity of 
& }aw itself, and that before it had involved a wrong to any, 
would give to the judiciary an absolute veto upon the 
legislature. It would have no parallel except perhaps in 
the tribunitial veto in Ilome,^ the ultima jus trihunorum 

1 1 Bl. Comm. 91. 

2 Argument of the Attorney General, 1867. 

The exclusion of the judiciary from the constructive politica. power of the 
nation, has been recognized in an opinion of the Supreme Court. It states that 
when^he national government acts, for instance, in reference to the concerns of a 
commonwealth, "the constitution, so far as it provides for an emergency of this 
kind, has treated the subject as political in its nature and placed the power in 
the hands of that department," i. e. the legislature. It continues, " its decision 
(t. e. the legislature's) is binding on every other department of government, and 
cannot be questioned in a judicial tribunal." — Luther v. Borden, 7 Howard's R , 1. 

"Invested with political power to keep the other departments in their pre^ 
scribed limits, such a doctrine must destroy the judiciary. The people will 
not bear a political power which is independent of their control. If the judici- 



206 THE NATION. 

of the republic, and the illustration still would be imper* 
feet, for the tribunitial power was of the people and was 
held only for short periods. 

The decision of the judiciary is authority in all courts^ 
and this is necessary to the unity of a judicial system and 
the uniform interpretation and appHcation of the laws ; ^ 
but the decision is in no respect binding as a rule of legis- 
lation upon the legislature. 

The judiciary demands for its strength exclusion from 
all legislative and executive functions. It has the indi- 
cation of its independence in the tenure of its office. 
It is not a representative body, and therefore is not to 
be constructed as representative. The call to it is to be 
from the government of the nation, in its authority. It 
demands also exclusive quahfications, and the study requi- 

ary exercises such power it must become representative, which is the nature of 
all political power under free institutions. A branch of government which can 
dictate to the legislature is legislative." Fisher, Trial of the Constitution^ p. 82. 

" By the Constitution of the United States the President is invested with cer- 
tain important political powers, in the exercise of which he is to use his own 
discretion, and is accountable only to his country in his political character and 
to his own conscience. To aid him in the performance of these duties he is au- 
thorized to appoint certain officers, who act by his authority and in conformity 
with his orders. In such cases their acts are his acts, and whatever opinion may 
be entertained of the manner in which executive discretion may be used, still 
there exists and can exist no power to control that discretion. The subjects are 
political. They respect the nation, not individual rights, and being intrusted to 
the executive the decision of the executive is conclusive." Marbury v. Madison, 
1 Cranch's R., 137. 

" The Supreme Court of the United States, like all other courts, is simply a court 
of judicature, to decide controverted cases, in law, equity and admiralty, that are 
brought before it by actual litigants. It is not charged with any special func- 
tion conservative of the constitution, like the so-entitled Senate of the French 
Constitution of December, 1799. In cases before it the Supreme Court hag 
no other jurisdiction over constitutional questions than is possessed by the hum. 
blest judicial tribunal, state or national, in the land." 

*' The court does not formally set aside or declare void, any statute or ordi- 
nance inconsistent with the constitution. It simply decides the case before ii 
according to law, and if laws are in conflict, according to that law which has th« 
highest authority, that is, the constitution." — Wheaton's International Law 
Dana's note, p. 79. 

1 " And the judges in every state shall be bounrl thereby, anything, etc. 
A.rt. 6, sec. 2- 



THE NATION AND ITS NOEMAL POWERS. 207 

Site to its higher attainment often withdraws men from 
direct intercourse with the people. 

The judiciary must always resist in so far as it can, 
arbitrary action or usurpation in every form and by every 
power ; but it is not invested with superior or special func- 
tions for this end, and its resistance is simply that wliich 
belongs to every degree of power. 

The judiciary has, in fine, no power of origination, but 
only of judgment and comparison. But it subsists in the 
nation in its sovereignty, and therefore, while it is not con- 
stitutive of the political order, it has not merely a formal 
relation to it. Though it cannot make its opinion a law 
constructive of the pohtical order, because then it would 
be a legislative power, it is yet in its sphere to interpret 
and apply the law. It cannot determine what shall be the 
law, but only ascertain and define what is the law. The 
fact that it is to interpret and apply the constitution as law, 
and then also the laws of the legislature, has been the 
occasipn of the advancement of the judiciary, and of the 
reference to it of public or national law. If it be allowed 
that nations stand related and their rights and powers and 
obhgations are comprehended in pubhc or national law, as 
individuals stand in their private relations in common law, 
it is then in the apprehension and expKcation of the former 
that the province of the national judiciary appears. And 
the strength and consistency of the judiciary in its his- 
torical com"se has been in the fact that it recognized the 
necessary being of the nation, as subsistent in the sphere 
of public or national law ; and its greater decisions were 
formed in the conception of the nation in its necessary 
being, — the organic power which in its sovereignty asserts 
itself in the constitution, and enacts its will as law.^ The 

1 The illustration of this is, for instance, in the dec'.sions of Gibbons v. Ogden, 
Martin v. Hunter's Lessee, Luther v. Borden, McCulloch v. Maryland, Ogden ». 
Saunders. 

The constitution is interpreted in no exclusive or restrictive sense. "It did 
not suit the purposes of the people, ir framing this great caarter of our liberties, to 



208 THE NATION. 

office of the, national judiciary is necessarily the explication 
of those principles, in which the necessary being of the 
nation consists, and in which alone national rights and 
powers can be construed. The terms of the constitution 
which presume the being of the people, and the law as 
the expression of its organic will, can only be rightly con- 
strued in conformance to the necessary conception of the 
nation. It is certainly to allow the proper authority to the 
historical interpretation of law ; but this can be only as it 
apprehends the actual history bf the nation, and in so far 
as it substitutes for the actual facts in this history, its own 
abstractions, its opinions will become as worthless and vain 
as all abstractions are, which cannot be allowed to thwart 
or to stay the organic course of the people, and the real- 
ization of its historical life. The earlier decisions of the 
Supreme Court were characterized by their profound and 
lofty conception of the nation. There was, in that period, 
in the varying conflict of rights, a conception of the na- 
tion, its being, its rights, its powers, its capacities, which 
places the names of the earlier justices by those of the 
earlier presidents. Chief Justice Marshall is second only 
to President Washington, and the services of Mr. Justice 
Wilson were no less than those of Mr. Secretary Hamil- 

provide for minute specifications of its powers, or to declare the means by which 
these powers should be carried into execution. Hence, its powers are expressed 
ra general terms, leaving to the legislature from time to time to adopt its own 
means to effectuate legitimate objects, and to mould and model the exercise of its 
powers as its own wisdom and the public interests should require," — Martin v. 
Hunter, 1 Wheaton R. 304. 

" This instrument contains an enumeration of powers, expressly granted by 
the people to their government. It is said that these powers ought to be con- 
strued strictly. But why ought they to be so construed ? Is there one sentence 
in the constitution which gives countenance to this rule? In the last of the 
enumerated powers, that which grants expressly the means for canying all oth- 
ers into execution. Congress is authorized to make all laws which shall be nec- 
essary and proper for the purpose. But this limitation to the means which may 
be used is not extended to the powers which are conferred, nor is th^e one sen- 
tence in the constitution which has been pointed out by the bar, or which w« 
have been able to discern, that prescribes this rule." — Gibbons v. Ogden, J 
Wheaton R. 1. 



THE NATION AND ITS NORMAL POWERS. 209 

ton. In tlieir decisions, there is the foundation of a na- 
tional jurisprudence, which Kent has justly described as 
" a solid and magnificent structure." It is in later decis- 
ions that a provincial theory or a partisan scheme or a 
narrow legal dogma succeeds to that high conception of 
national powers and rights; it is in recent decisions that 
there is displayed the conceit of a power, which in its his- 
torical interpretation may ignore all the facts in the history 
of the nation, and proceed to determine the issue of the 
gravest historical crises, by the application of certain pe- 
dantic formulas, which the spirit of the people does not 
know nor recognize. 

The legislative and executive and judicial powers, in the 
exact significance of these terms, are but imperfectly de- 
fined. The distinction has a scholastic style, and is sug- 
gestive rather of the terminology of science than of the 
powers in the civil and political organism. These phrases 
become the occasion of error, when they are assumed to 
define powers which have not their source in the organic 
unity, and their development in the organic relations of the 
nation. When they are described as proceeding from a 
formal law, it has been truly said that they make of the 
nation only a great law machine, and the government a 
necessary contrivance for making laws, where one power 
institutes the law and a second executes and a third apphes 
it. But these powers, in their immanence in the civil and 
pohtical organism, and in their institution in the realization 
of rights and of freedom, transcend this empty conception. 
There is beyond these terms a significance in the words 
which always will denote these powers with the people, — 
the Congress, the Pr^'sidert, tbe Judges. 

14 



CHAPTER Xn. 

THE NATION AND ITS REPRESENTATIVE CONSTITU'nON. 

The sovereignty of the nation has its normal assertion 
in representative government. The representative prin- 
ciple is illustrative of the higher political organization. 

The representative constitution is the reahzation of the 
sovereignty of the nation in its necessary conception as a 
moral organism. 

Government is necessarily of and through a person. 
There is in its action the assertion of personahty, and 
sovereignty is existent as the determination of personality. 

In the normal process of the nation in its representative 
organization, in whom does its sovereignty rightly exist ? 
The common answer is in two forms : — 

Firstly ; it is said that it is existent in the whole people. 
This embraces each and every individual in the nation, 
mth no ftirther discrimination. This is merely indefinite, 
'cjid can admit of no actuahzation. It does not presume 
even the consciousness of a political unity and order, which 
is the precedent and condition of the action of the political 
will. It does not ascertain a real sovereignty. It is phys- 
ically impossible, since the whole population comprises a 
certain proportion who are not capable of performing what 
the proposition presumes. It is unhistorical, since there 
has existed no political organization where the power was 
held in common by the whole population ; some law regu- 
lative of political action in the consciousness of the people 
must be assumed. The proposition is inconsistent with 
the organic and moral being of the nation, and has its 
premise in the conception which identifies the contiguous 
population in a certain locality with the nation. 



THE NATION AND ITS KEPRESENTATIVE CONSTITUTION. 211 

Secondly ; it is said that it is existent in the qualified, 
electors. But who, in the normal representative consti- 
tution, are qualified ? What qualification may be rightly- 
assumed by the nation as defining an elector ? It is said 
that the nation of itself has a right to define the qualifi- 
cations of its electors. This is evident; for as the act 
of the elector presumes the being of the nation, and 
the consciousness of unity and order, that is a political 
spirit, so the nation alone may define the qualifications of 
its electors ; and the act then of the elector is that of one 
in whom there is the political spirit which subsists in the 
nation. The act of each — the nation and the elector 
— is primarily involved in the other, there is a logical, 
but not a formal, precedence. But since, then, the nation 
alone has the right to define the qualifications of its elec- 
tors, in what principle may it rightly proceed to define 
them ? In what principle may it ascertain the real sov- 
ereignty of the nation, so that in the designation of its 
qualifications its sovereignty may have fall and free 
exposition? The nation cannot be left to define these 
arbitrarily, since that would contradict the reason of the 
state, and would imply injustice in the nation itself; its 
process would become the expression of the wilHulness 
of men, not of the will of the people. It cannot be pre- 
sumed that they are to be left for their definition to the 
adjustment of accident, since the conception of sovereignty 
orecludes this ; and the nation can allow no accident to 
shape its course or determine its end. 

In what principle, then, is the nation to proceed in its 
representative constitution, — in the realization of its sov- 
ereignty? This inquiry may be carried farther. What 
is the quality of the act of an elector for which qualifica- 
tions are requisite in order to define it? In other words, 
what is a vote ? A vote \s the formal assertion, in con- 
formance to certain pohtica* prescriptions, of a fr-ee wiU in 
the determination of the government of the civil and polit- 



212 THE NATION. 

ical organization. It is tlie act of a person in the politica. 
process of the people of which he is a member. A person 
is one who has a free will, — one whose action is free and 
self-determined. This is the substance of personality, and 
in this personality is in identity with sovereignty. The 
existence of personality is therefore necessarily presumed 
in the qualifications of an elector. 

The inquiry, then, as to the principle of representation 
is resolved into the further inquiry, what is the organiza- 
tion of the nation, — the normal pohtical organization, in 
which a person acts as an elector, in the determination of 
its sovereignty ? The answer to this inquiry has always 
been in correspondence to some antecedent assumption, as 
to the being and end of the nation. 

It is said that the nation is formed in the representation 
of interests, which in their combination are assumed to 
constitute the political organization. This is the postulate 
of Mr. Calhoun. He says : " There are two ways in 
which the sense of the community may be taken. One 
regards numbers only and considers the whole community 
.IS having but one common interest throughout, and collects 
the sense of the greater number of the whole as that of 
the community. The other, on the contrary, regards in- 
terests as well as numbers, considering the commmiity as 
made up of different and conflicting interests, as far as the 
government is concerned, and takes the sense of each 
through its appropriate organ, and the united sense of all 
as the sense of the entire community."^ This is defined as 
a universal principle and applied to all forms of govern- 
ment. " In a republic, in consequence of the absence of 
artificial distinctions, the various natural interests rise into 
prominence and struggle for the ascendency ; " and he says 
of the restriction of each by the other, " it is this negative 
power which in fact forms the constitution." 

1 Calhoun^s WorJcs, vol. i. p. 221. 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 213 

This identifies the nation with the commonwealth or 
the civil corporation, while in that it is imperfect, since it 
allows no real ground for its continuance. It apprehends 
the organization of society only as the combination of con- 
flicting interests, each stiTiggling for the ascendency, and 
the constitution is the negative result which is obtained in 
ihe balance of these repellant forces. This theory of self- 
ishness, or of enlightened self-interest — Vinteret Men en- 
tendre, which is assumed as the basis of society, cannot 
become the foundation, nor, in the balance of its endless 
antagonisms, constitute the authority of the nation. There 
is no combination of private interests or private rights 
which can attain to the conception of public rights or du- 
ties, or create a public spirit ; no accumulation of special 
interests can form the whole, and the nation does not exist 
for the furtherance of private or special ends. 

Interests, even in the low and evil conception of life in 
which this theory proceeds, do not form the stronger mo- 
tives to human action, but are overborne even by the 
habits and impulses and passions of men. These interests 
moreover, centering in self, cannot become constructive of 
unity, for unity can subsist only in the consciousness of 
moral relations. There is also in the foundation of the 
nation the manifestation of a spirit and law of duty and 
sacrifice, and there has been none but has been called to 
crises in which no interests could be weighed against the 
sacredness of its life, or the obligation of maintaining it. 

While each interest is thus constituted as a negative 
against every other iaterest, these negations can form 
nothing positive ; they are constructive of nothing. 

The proposition assumes also a representation "through 
tneir appropriate organs," of various interests, whose value 
is to be regarded, and which are weighed and counted 
against each other, and estimated by some special consid- 
eration. As this becomes the ground of representation, 
it would consistently require a repr ^sentation of interests 



214 THE NATION. 

proportionate to their value and extent, and form a con- 
stantly changing schedule. 

It is deficient even as a description of the commonwealth 
or the civil corporation, and in it the organization of society 
is severed from its moral ground ; its bond is only the 
maxim of expediency, and its permanence the dictate of 
some separate and private interest seeking its own end. 
There is no longer a higher authority for government, nor 
the recognition of a divine obligation to maintain order 
and to punish crime. It is the disintegration of society; 
and the subversion of the whole, by the secession of any 
interest which deems the action justified by the grievance 
it may suffer, or by the profit it may anticipate, is its logical 
and historical sequence. 

It is said that the nation is constituted in the representa- 
tion of families. The family is the integral and formative 
unit of the nation ; each family is to be represented in it, 
and only one who is the head of a family is to be an elec- 
tor. 

But the nation as an organism is distinct fi:om the 
family. Instead of being limited and defined in its end 
by the end of the family, and in its order subordinate to 
it, it is constituted over it. 

The proposition would conform to an oriental type of 
society, and instead of consisting with the organic and 
moral being of the nation, it would be constructive of a 
state in which there was no political spirit, and no citizen- 
ship or law or freedom. It would also, unless supplemented 
by a fiction, obviously exclude some who have wrought 
with the highest power in history. 

It is inconsistent with the nation in its necessary con- 
ception, as itself a moral organism, to which the individ- 
ual has an immediate relation, and not merely a rela- 
tion formulated through the family. But the error in 
the premise of the proposition, is the implication of th? 
identity of the family with the nation. 



THE NATION AND ITS REPEESENTATIVE CONSTITUTION. 215 

It is said that the nation is constituted in the representa- 
tion of numbers. The whole number of inhabitants as 
enumerated by a census, is to be represented. 

There is no more reason why men should be esti- 
mated by their numbers than by any other physical qual- 
ity, as for instance their bulk. There would be the same 
consistency in basing representation upon the stature or 
color or gesture of men, and these might with the same 
justice enter into the representative government. There 
is no clearer discrimination of sovereignty in numbers 
than in any physical proportions. This also assumes the 
identity of the nation or the political people simply with 
the population. 

It is said that the representation should he of certain 
capacities or properties or accidents attaching to men. This 
regards certain powers of mind, or incidents of life, as 
for instance, occupation, as the ground of representation. 
The practical application of this proposition has been at- 
tempted in the scheme for a plurality of votes. Mr. Mill 
denies the proposition, " that all persons ought to be equal 
in every description of right recognized by society," and 
therefore demands a distinction in the number of votes 
which each should give ; "if every ordinary unskilled 
laborer ought to have one vote, a skilled laborer ought to 
have two, a farmer, manufacturer, or trader should have 
three or four, a lawyer, a physician, or surgeon, a clergy- 
man of any denomination, a literary man, an artist, a pub- 
lic functionary, ought to have five or six." These propor- 
tions are laid down, " putting aside for the present the 
consideration of moral worth, of which, though more im- 
portant even than intellectual, it is not so easy to find an 
available test." If then this consideration of relative moral 
worth were added in this arithmetical estimate, the differ- 
ence between the single vote of the workman, who knows 
enough to cast one vote but not more than one, or is good 



216 THE NATION. 

enough to cast one but no more, and the higher grades of 
social and intellectual acquisition would be very great. But 
the proposition, in its appHcation, would be unjust upon its 
own premise, while this condition is omitted, and of this 
the external condition gives no test. If the power of each 
as an elector was made thus proportionate, in a numerical 
scale, to certain external signs of relative moral worth, 
the standard would inevitably be so imperfect, as to make 
the actual process corresponding to it the most complex 
system of injustice. It not only would revive the maxims 
of the Pharisees, but it would attach to their schedule of 
virtues a power beyond any compensation that has been 
assumed in their estimates. If it were joined to a merely 
economical conception of the state, there could be for a 
people whose moral strength had any living energy or 
spirit, no agent of debasement so potent. 

But the principle which the scheme assumes is false, for 
it is not the occupations nor the acquisitions of men, nor 
literary attainment, nor official place, nor artistic nor pro- 
fessional skill that is the ground of rights, but it is person- 
ality itself, and in the infinite worth of personality — the 
worth of manhood ^ — is alone the foundation of rights. The 
state can compute this by no arithmetical notation, nor by 
any addition or subtraction can it find its numerical equa- 
tion. It cannot set against some intellectual or professional 
acquisition in. one person the whole determinate action 
of another person. The proposition proceeds from a 
merely artificial notion of personality, a mechanical stand- 
ard of duties and rights, a formal scheme of morals, the 
smpiric of virtue ; it is the " excellent foppery of the 
world." 

It may be farther said of this scheme, that none of the 
properties and powers enumerated in it correspond to the 
nation as founded in the nature of man, and as the nor- 
mal and moral order of human existence. If it were a 
great utilitarian organization or machine, a cutlers* associa- 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 217 

tion, or a railway or gas company, or a produce exchange, 
or an economic society, and it were required to choose 
those who should be its foremen or directors, then it might 
better give to skilled labor or to professional attainments, 
and to these in their strictest estimate, the sole or the sub- 
stantial choice ; and if it were only an academic society, a 
school or sect, then hterary culture or scholastic habit 
might chose its dean or doctors. 

But it is none of these ; the principle, moreover, in so 
far as these estimates have been applied, has been dis- 
proved. The hterary and scientific class, to whom in this 
estimate, and perhaps, on its premise, no better could be 
made, a power sixfold beyond that of the unlearned is 
allowed, have only too often been betrayed by whim and 
caprice, and subservience to pohtical abstractions. They 
are men withdrawn, perhaps, in the narrow circle of some 
ethnic or linguistic theory, and bhnd to all facts beyond its 
narrow horizon, or scholars who draw their pohtical prece- 
dents from the ideal world of Homer's heroes, and not the 
grander world of to-day. The Universities, when a special 
representation is open to them, are more often represented 
by lower men ; as Oxford in England, whose later repre- 
sentatives could scarcely justify the working of the repre- 
sentative system in comparison with the greatest of its 
medieval politicians, William of Occam, or might suggest, 
in the comparison, some question as to the principle itself. 
A fact often noticed, is the tendency, also, to defect of 
pohtical spmt and loyalty, in men of an exclusively scien- 
tific or mathematical culture ; it may be in the latter, 
I because their study is merely formal ; there is the depre- 
i ciation of the moral or political world, the hfe of man in 
f history and the order of society, in comparison with the 
physical world. 

But this empiric standard would require also for its con- 
sistency the adoption of a negative scale, by which the 
]! number of votes should be diminished, as, for instance, one 



218 THE NATION. 

who lives in idleness, whether m poverty or with iixherited 
wealth, whatever be his profession or his attainment in it, 
should have his number of votes correspondingly reduced , 
this rule of subtraction would require constant changes 
with the changes of condition or character, as on some 
weather-gauge with its shifts ; and in the representation 
of professions, the difference between the better and poorer 
members is more than the difference between separate 
professions, and this also would require representation. 

While the aim in this proposition may be well enough, 
the principle assumed has no foundation, and therefore 
fails of any clearly defined practical application. It is at 
the outset in conflict with the foundation of rights, or it 
may be said, that it allows its inconsistency with an equal- 
ity of rights. The proposition has its premise in the me- 
chanical notion of psychology, which classifies and divides 
the will and the afiections and the powers of the mind, so 
that, as in Hegel's illustration, a man is represented as 
carrying one faculty in one pocket and one in another. It 
is after the distinctions of the school-men, who pronounced 
their judgment upon the masters in the medieval schools 
by a fixed scale, representing for instance genius as four, 
learning as five, imagination as six, judgment as seven, 
and striking the balance in order to arrive at then- com- 
parative merit. When Mr. Mill, to maintain his proposi- 
tion in opposition to " equal suffrage," defines the latter as 
an " equal claim to control over the government of other 
people,"^ it resolves the state into its atomy, and is the 
merest individualism ; for no man has a claim to control 
over the government of another, but the nation has the 
claim to government over the whole. 

The nation, then, is not constructed in the representa- 
tion of interests, for it is in itself before each and every 
separate and special interest, and can be formed by no ac 
cumulation of them ; it is not of numbers, for these maj 

1 J. S. Mill, Dissertations, etc.f vol. iv. p. 160. 



THE NATION AND ITS EEPRESENTATIVE CONSTITUTION. 219 

exist separately from it, and no aggregate of numbers, how- 
ever vast, is in identity witn it ; it is not of families, for it 
is other than the family, and no collection of families can 
attain to it ; it is not of special acquirements or capacities, 
as an association of trades, or arts, or schools, for the state 
is in none of these ; it is not to interests or families or num- 
bers, or special and exclusive professions and attainments, 
that the right of government in the nation belongs. 

The nation is constituted in its normal political order, in 
the representation of persons ; and the right to representa- 
tion is the right of a member of the nation who is a 
person. 

Government is and can be only of and through a person. 
The vote is the right in the nation of a person, as the 
act can be only the act of a person. This is no abstrac- 
tion to be newly applied in the sphere of pohtics, and 
no scheme for which from the outset an actualization is 
sought, but it is the principle which has the broadest 
ground in history, and the only ground in reason, and the 
necessary ground in justice. 

Firstly ; this principle has the broadest ground in his- 
tory. It alone can claim an historical justification in the 
representative constitution. It has not infrequently passed 
into the order of the state without a direct or avowed rec- 
ognition, as if of itself coming forth. There has been a con 
stant endeavor, in some shape, toward its assertion. The 
most common tests which have been established have had 
no other consistent basis, and without the recognition of 
this law fall to pieces as a miscellaneous bundle of terms 
and conditions. Thus, in the most common conditions for 
instance, a universal principle being assumed, the child, 
or the dependent, or the demented are not allowed to 
vote, since they have not the will, the conscious self-deter- 
mination and freedom of a person ; and in the conception 
of the law they are constructi'~ely, but not actually per- 



220 THE NATION. 

sons ; and they, also, who have been proven to have ^ken 
a bribe, or made a wager on the issue of an election, are 
not allowed to vote, smce their act, as controlled by an 
external consideration, is regarded as no longer free, that 
is the act of a person ; and they who have committed a 
high crime are not allowed to vote, not because this priva- 
tion is an immediate punishment of crime, but because 
through crime they are regarded as having lost then' free- 
dom, as in wickedness men are no more free, and there is 
in it the destruction of personahty. There are no other 
tests which have been established so widely as these, and 
in this principle alone they have their consistent ground. 
The qualification of property might claim as wide an appli- 
cation, but that refers to this also for its ultimate justifica- 
tion. Blackstone, in a passage of great breadth and sig- 
nificance, concedes this. He says, " The true reason of 
requiring any qualification, with regard to property in 
voters, is to exclude such persons as are in so mean a 
situation, that they are esteemed to have no will of their 
own. If it were prolahle that every man would give his 
vote freely^ then every member of the community should have 
a vote. But since that can hardly be expected in any of 
indigent fortunes, or such as are under the immediate 
dominion of others, all popular states have been obliged 
to establish certain qualifications, whereby some who are 
suspected to have no will of their own are excluded from 
voting. ^^ Again he says, " only such are entirely excluded 
as can have no will of their own.'^^ While this presentation 
of human nature, which makes property the sign of per- 
sonahty, is neither just nor edifying, the principle of rep- 
resentation is conceded in it. There is, therefore, in all 
these tests, which have had the widest institution, the 
recognition of this principle and the endeavor to estabHsa 
it. It alone has the broadest historical ground, and only 
in their reference to it are the common conditions just! 
fied. 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 221 

Secondly ; this principle has the only ground in reason. 
It has its precedent in the being of the nation as the 
natural and normal order of human society. In person- 
ality, man has the condition of all rights, and a realized 
personality is to have its normal expression in the nation, 
as the nation is the natural and normal condition of hu- 
man society. The right to vote is therefore a natural 
right, — the right of a member of the nation. It is still the 
induction, in fact, of the postulate of Aristotle, " man is by 
nature a pohtical being." If the nation was only a formal 
or an artificial association, then it could allow any formal 
qualification and any artificial test, and the political arti- 
ficers constructing the fabric could elaborate them after 
their own device ; but if it be the natural order and con- 
dition of human existence, as there is in personality the 
realization of the true nature of man, so in the nation, as 
the manifestation of the true nature of man, there is to be 
the expression of it. There is no other conception of gov- 
ernment which is not inextricably involved in the arbitrary 
or the accidental. 

Mr. Brownson says, " The elective franchise is not a nat- 
ural right, because it is political power, and political power 
is always a trust, never a natural right, and the state 
judges for itself to whom it will or will not confide the 
right." It is evident that the nation is to judge for itself 
to whom it is to confide the right, but the whole inquiry is, 
as to what principle it may rightly act upon, in the asser- 
tion of this right, and what is to be the premise of its judg- 
ment. It is a right as well as a trus'', but the position of 
Mr. Brownson assumes as the condition of the process of 
the nation, the isolation of positive from natural rights, and 
the severance of the sphere of each. It is a trust and a 
right, and there is an inherent weakness in its separation 
as a trust from its conception as a right. In it, as it is 
nowhere else apparent, there is tho correspondence of a 
Tight and a duty, as they subsist iii personality ; it is a 



222 THE NATION. 

trust vested only in an actual or realized personality, and 
in this only is it a right.^ 

In this the nation is constituted in conformance to ita 
necessary conception, as a moral organism. There is 
evolved in a moral organism the affirmation of personality, 
and the nation is formed in the realization of personality. 
The person who is a member of a nation is not to be re- 
garded as a negation in his relation to it. For personality 
no negative condition is to be postulated, in which its be- 
ing is ignored, and its aim is disallowed; but it is to be 
regarded, as the nation strives toward the realization of a 
moral order. 

It is not alone the passive right to the advantages re- 
sultant from the nation, for in this there could be neither 
the satisfaction of the moral longing nor the ftdfiUment of 
the moral aim of man, and this would indicate only the 
defect in the moral condition of the nation and its degra- 
dation, but it is the right to recognition as a person and 
the correspondent affirmation of personahty in the process 
of the nation .2 

In this the nation is constituted in conformance to its 
necessary conception, as the realization of freedom. Free- 
dom is no negation ; it is not found simply in the security 
which is obtained by restrictions imposed upon an exter- 
nal power, nor in the uses resultant from the checks and 
guaranties constructed against an external power. It is 
not attained in a condition of indifference to the nation. 
It is not in the acquiescent reception of its common advan- 
tages, nor in the permissive participation in the things in 
which it has profited. Personahty is not regarded in the 
nation when it is restricted to some special end, nor has it 

1 Brownson, The American Republic^ p. 379. 

" No man has a natural right to be a voter without qualifications or conditions 
but every man in a republican state has a natural right to become a voter." — 
Mr. Taylor Lewis. 

2 " Die volksvertretung ist im Staat absolute sittliche Forderung, namlick 
genau in demselben Maase, in welchem der Staat, bereits wirklicher Sta?it ist." - 
Rothe, Theohgische Ethik, vol. ii. p. 125. 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 223 

compensation in the partnership of its accumulated gams. 
The personaHtj of man is not in the multitude of things 
which he possesses. Freedom is only in the realization of 
personality ; it is only as there is in the nation, in its pro- 
cess and order, the expression of personality that there is 
in it the reahzation of freedom.^ 

Thirdly ; this principle has a necessary ground in jus- 
tice. In this, government in the nation is constituted in 
conformance to its normal law. It rests in the conscious 
consent of the people. It is the assertion of the political 
will of the political people. The more perfect expression 
of the will of the people is in the government, and it em- 
bodies in it its purpose, and has in it the satisfaction of its 
aim. The government in the determination of its sove- 
reignty is not a mere order apart from the people ; it is not 
an abstraction having no ground in the organic and moral 
being of the people, but it is the determinate life of the 
people in the realization of a moral order. 

The government in its necessary conception is over the 
people, but it is none the less the determinate action of the 
people, and of the whole people in its reaHzed sovereignty. 
The individual person is not simply to exist as a subject to 
the government of the nation, while yet he is in perfect 
subjection to it, but he is to act determinately in it. 
The self government of the people is then no speculative 
pretense, and no legal abstraction; it is no formal order 
and no aggregate of institutions, but there is in it the real- 
ization of the self-determination of the people, the asser- 

1 Franklin asserted these two theses : " That every person of the community, 
except infants, insane persons, and criminals, is of common right and by the 
laws of God a free man, and entitled to the full enjoyment of liberty." " That 
liberty or freedom consists in having an actual share in the appointment of those 
who frame the laws, and who are to be the guardians of every man, of life, prop- 
erty and peace; for the all of one man is as dear to him as the all of another; 
and the poor man has an equal r.ght, but more need to have representatives in 
the legislature than the rich one." — Franklin, Wor^, vol. ii. p. 372. 

'* Auch in der rechtlichen Freiheit, ist demnach, die Wahl, ein unentbehrlichei 
moment, — ja, sie ist die Bliithe der Freiheit, denn die Wahl isteben die Au»- 
lerong der Jndividualitat " — Stahl, tdI. ii. sec. . p. 327. 



224 THE NATION. 

tion of and the obedience to law. The right of govern- 
ment in the nation is not then merely prescriptive ; nor is 
it derivative from any convention ; nor is it to be con- 
strued as a private right, to become the privilege of a 
caste ; nor is it to be restricted to a succession in a certain 
family or a certain number of families to be accounted only 
as some domiciliary right, vested in its present occupants, 
and to descend as their estate, but it is the right of the 
people in the realization of its moral being. 

If any other principle be assumed, it must justify itself 
in another and a lower conception. If for instance, the 
nation is based upon property or has for its end the secu- 
rity of property, then property may control it, and money, 
not men, may rule it, and those who have their highest 
accomplishment in the making and keeping of money may 
represent it; — if it consist as a private possession in the 
privileges of the few, a family, or class, or race, whom force 
or accident has placed in power, and if it be only the in- 
crement of their privileges to be held against all comers, 
until some may come with stronger and more subtle force 
to oust them, and hold these privileges against the former 
proprietors, then, those holding them alone may determine 
the course and destination of the whole. If any form be 
assumed by which the expression of personality is denied, 
then in so far, the government is defective, as the form is 
arbitrary, since it exists not in the aiSrmation of that 
which yet, in a realized personality, has in itself the spirit 
and the determination in which government subsists. It 
becomes the suppression and not the manifestation of the 
power immanent in the nation in its moral being. And 
as the form in which the affirmation of personality in its 
normal process is denied is arbitrary, it may assume the 
form of the determination of an individual, or family, or 
class, and becomes the support of the power and privileges 
of one or of a few, who hold only a formal and legal prece- 
dence. It establishes the government in an exclusive, arc? 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 225 

not in a universal principle, and it is formed in a narrow 
separatism, as if the individual personality were to act in 
the nation for some special end which is placed before 
each, but not in its being, in the reahzation of the univer- 
sal end. 

The representative government is therefore constituted 
in the representation of the people, in the realization of 
its moral being. It is the representation of persons. Tliis 
principle has had its assertion in the progress of the nation, 
and with the higher result of history. It is in the being 
and order and sovereignty of the nation, in the institution 
of rights, in the realization of freedom, that common men 
as a fact have proven themselves to be men. The suc- 
cession in the authority of the nation, since its inaugura- 
tion, has been maintained unbroken, and has triumphed 
over anarchy, when allied with the hate and the secret 
assault and support of aristocratic and imperial powers. 
It has been the ordination of a mightier sovereignty, and 
the institution of an ampler freedom, and the reahzation of 
the noblest political order which the world has seen. The 
line of the Presidents, the elect of the people, from Pres- 
ident Washington to President Lincoln, has been greater 
than any hne of kings. In the succession of events, the 
self-determinate purpose, the moral strength of the people, 
has been tried in its integrity and firmness of resolve, 
through the crises of the most mighty insurrection, and it 
has sought the maintenance of the authority of law, and 
the consistence and continuance of order, and with the 
love of peace in its steadfastness it has followed them with 
an unselfish end. 

The right to vote is the right of every person who is a 
member of the nation. It is the birthright of freedom. It 
is the right only of a person, that is one m whom there is 
the realization of personalii^y, OTie whose action is self-deter* 

15 



226 THE NATION. 

mined, — one who has the consciousness of law and of 
freedom in the self-determination of his own spirit, and in 
that alone is the power which can shape the course and 
destination of the state. It is the right of every person 
who is a member of the nation, that is, who is born and 
educated in it, as the nation itself is not simply a physical 
but a moral organism. It is in the assertion of this right 
alone, that there is the expression of the political will of 
the political people. In this alone the government of the 
nation has also the manifestation of its divine origin and 
institution ; as personality has its realization only in the 
realization of divine relations and the fulfillment of the 
divine will. In the institution of righteousness and of free- 
dom is the being of the nation, and in this in its highest 
conception, government in the nation is manifested as a 
trust and a right. 

The aim of the political constitution should be, to give 
to every member of the nation who is a person, represen- 
tation in it, that is, every actual person should vote, and 
none beside. This and this alone ascertains the actual sov- 
ereignty of the political people. The qualifications which 
proceed on this ground, which is also the nature of the act 
itself, — and no power can make it other than this, — alone 
give expression to the political thought and political will. 
These qualifications may become more exactly defined in 
the historical development of the political people ; but their 
aim will be always the same. These qualifications as de- 
fined in law have necessarily the form of a general law. 
Their intent is the exclusion of those only who have no 
will of their own, that is, no personality. Thus children 
and minors, and those who have taken bribes or made 
wagers, and the imbecile and insane, and all convicts or 
criminals are not allowed to vote.. The government of 
the nation is founded then in the determination of its 
manhood and in the spirit of the people, and not in the 
accidents of life, as property or occupation, or rank, or 
color, or race. 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 227 

The vote then, as the representation of a person, pre- 
cludes all special distinction. There is an infinite worth 
in personality, and therefore every person in its repre- 
sentation counts one. It is representative of the whole per- 
sonality. There is no graduated scale in which to estimate 
the relative worth of real manhood, or the valuation of 
the whole moral determination. If the personality of man 
could be made secondary, then by a graduated standard 
the most extensive system of a plurality of votes could be 
adjusted to the proportionate worth of the moral determina- 
tion of men, and many votes could be given to one, and 
few to another ; but the personaKty of none can be held 
thus as itself inferior and its all, the entire moral determina 
tion in its integrity, as of a diminished quality. 

To confer the power of an elector upon one who in the 
course of nature is not a member of the nation, belongs 
only to the nation in its sovereignty. There is for every 
individual as such, whether citizen or stranger, aU rights 
subsisting in the necessary relations of life, that is aU civil 
rights , but all rights subsisting in the nation in its free- 
dom, that is all political rights, are only of the politica.. 
body, and if an alien be received and made a member ol 
it, it mubt be by the act of the nation in its sovereignty. 
The homely phrase of the law is — to get naturalized ; but 
this is not tt shght nor easy thing ; and nature works, even 
as in the life of states, slowly and patiently, and is not sub- 
ject to the dct of legislatures, or the administration of 
courts. The RepubHc is indeed to welcome the stricken 
and the oppressed for conscience sake out of every land, 
and is to be 3*5 the city whose gates are open by night and 
by day, and not the least among its titles is that of the 
name of the home of the pilgrim ; and if it be forgetftil 
of this, it loses some of its noblest historical traditions. 
But to admit to immediate representation whoever may 
come to its shores, who have ud consciousness of the aim 



228 THE NATION. 

and destination of the nation, and no participation in its 
political spirit, becomes a defect of government and is a 
detriment to the Republic. To bestow upon these the 
same political power with those born and educated m 
the nation and animated by its design, is no more just, 
than to refer the decision as to the direction of a house or 
the disposal of an inheritance to some transient guest who 
may come to lodge over night or take shelter in a storm. 
They have no apprehension of the unity and continuity 
of the nation, and do not partake of its conscious spirit ; 
it is elsewhere that their thoughts turn to cherish the 
memory of their ancestors, and elsewhere that their hopes 
look for the home of their children. Thus, there are Keltic 
and Asiatic populations who have been educated under 
an imperiahsm, and bring with them imperial tendencies 
which involve the degradation of the individual personahty. 
They have thus no clear conception of freedom and of 
rights which subsist in personality, nor of what constitutes 
a nation; there is thus often among the Keltic popula- 
tions a merely tribal feeling, and the nation is conceived 
as itself vested in a race, and in the want of personality 
they fall under the control of some priest ^y demagogue. 
The immediate characteristic of the Asiatic populations 
is this want of personality. Through customs which 
have a weight which the occidental mind can scarce- 
ly apprehend, they retain their attachment to the land 
of their nativity. They have here no enduring home, 
and regard another land as alone sacred. Thither they 
turn with reverence to the graves of their ancestors, and 
look forward themselves to finding a grave in it, avoid- 
ing to fall in battle elsewhere, and refusing elsewhere to 
be buried. There is an evil in the accumulation of masses 
:f populations whose thought and spirit separate them from 
the nation, and who are subject to a foreign ecclesiastical 
or political influence ; but the evil is not obviated by con- 
ceding to them a political power which has no root in 



THE NATION AND ITS EEPRESENTATIVE CONSTITUTION. 229 

devotion or sacrifice, and is inspired by no love. There 
may and should, in the prudence of the state, be some 
form or law of naturalization; but to refer to these pop- 
ulations political power, with no discrimination, involves 
danger to the political whole. 

It is thus, also, that Indians are excluded from voting ; 
not because they are not taxed, but because, as they are 
subject to the wiU of a chief and absolutely controlled 
by it, they are without freedom; they also exist in a 
tribal relation, the organization of a race, which isolates 
them from the organic and moral being of the nation ; but 
in withdrawing from this tribal relation, they come upon 
a national position and should be regarded as members of 
the nation. 

There have been some quahfications defining the right 
to vote which claim a separate notice. The qualification 
in property, maintained by Blackstone as the sign of a 
conscious freedom and independence of character, has an 
historical presumption. But property is no more the evi- 
dence than it is the basis of manhood. It has always in 
itself too great power, and there is always danger that it 
may seek to subvert character, and to subordinate the 
whole to selfish ends. This pecuniary condition of suf- 
frage tends, also, to an estimate of the nation itself by a 
pecuniary consideration. It induces the disposition to re- 
gard the government as the agent of special interest;?, and 
in the crises of its existence there has been the inclina- 
tion, in great divided interests and monopolies, to pursue 
exclusively their own separate ends.^ When it is said 
that the owner of property should vote, because possession 
gives a stake in the nation, it makes self-interest the con- 
dition of the nation, wnich it cannot be ; and as in these 

A Mr. Brownson says, " The mere men of wealth, the bankers and brokers, 
»re those who exert the worst influence upon the state ; their maxim is, let the 
»tate take care of the rich, and the rich of the poor, and not let the state take 
care of the weak, for the strong need it not.'' — The American Hepiiblic, p. 383. 



230 THE NATION. 

crises the nation maj call for the sacrifice of property 
and of the life of the individual, there is the negation of 
the so-called stake in it. 

But a property qualification has its premise in the as- 
sumption that the nation exists primarily to protect prop- 
erty. It regards security as the only end, and prefers 
Babylon to Judaea if only the ducats are stowed away more 
safely in it, though they never are. But the residence of 
government in property is consistent only with the organ- 
ization of the nation in certain private rights, the barbaric 
or the patrimonial constitutions, where power is a private 
estate. Thus when property has been made the exclusive 
qualification, there has been the disposition to regard a vote 
as something which one possesses, as itself property, some- 
thing which may be held at a pecuniary valuation, and 
bartered or transferred. 

A qualification in education, or more strictly, a literary 
qualification, as the ability to read some state document or 
to write, has obtained a recent advocacy. In so far as in- 
telligence is implied in the conscious freedom and self-de- 
termination of the will, that is, in so far as its action has 
a rational content, this test has a higher worth than the 
preceding, and the real education of the people, in which 
there is a moral more than an intellectual element, is, in 
another phrase, the realization of personality. But the 
inquiry is, how far a strictly literary qualification is indic- 
ative of this. If it was the only qualification, then lads 
at school, on passing their examinations, could vote. The 
qualification is then assumed as but one, with certain 
others, and the ability to read or write, and a certain tech- 
nical or scientific acquisition, is held as indicative of fitness 
for the offices of a citizen, so that all lacking this are pre- 
cluded from its highest exercise. 

But the test is a superficial one, and perhaps of all ij 
the most artificial. A technical or scientific acquisitior 
b not the evidence of the real education of the people 



THE NATION AND ITS REPKESENTATIVE CONSTITUTION. 231 

Mr. Hare says justly, that "no science can reach the 
depths of the knowledge painfully won in the daily life, 
and the experience of man and woman." The life of the 
workman, the fulfillment of human relationships in the 
family and the community, the endeavor of men in the 
reahties of life, is a deeper education ; and in work rather 
than in a certain Hterary or scientific acquisition, is the 
evidence of the capacity for political power. 

There is nothing in the political action of a distinctly 
literary or scientific class to justify the apphcation of this 
test.^ They have seemed more often to be controlled by 
notions or theories, or by some vulgar conceit withdrawn 
from politics and the organic life of the people, to become 
only a learned mob. The elements of character, clearness, 
foresight, and the self-determination of the will, are not 
always among the acquisitions of literature or science. 
Even Comte says, "clear-sightedness, wisdom and even 
consistency of thought, are quahties which are very inde- 
pendent of learning." 

A quahfication of a literary or scientific form for polit- 
ical action has also no historical justification. Some of 
the most intellectual periods in the course of a people 
have been the most corrupt ; they have been characterized 
by the destruction of personality and the coincident decay 
of national life. Greece in her dissolution was crowded 
with the most fluent rhetoricians and the most subtle 
sophists, and her citizens became at once the slaves and the 
tutors of other peoples ; and the Greek still with his intel- 
lectual acuteness is destitute of the most primary civic 
rirtues. The age in Rome which was marked by the 

1 See Milton's reply to the grammarian, " Whosoever therefore he be, though 
from among the dregs of the common people, that you are so keen upon, who- 
Boever I say has but sucked in. this principle, that he was not born for hia 
prince, but for God and his country ; he deserves the reputation of a learned 
and an honest and a wise man mere, and is of greater use in the world than 
yourself. For such a one is learned without letters; you have letters but no 
learning, that understand so many languages, turn over so many volumes, and 
ret are but asleep when aFi is done." — Milton's Works, vol. i. p. 30. 



232 THE NATION. 

transition from a nation to an empire, althougli its creative 
power in literature in certain forms may be traced to a 
preceding national development, was yet characterized by 
a wide intellectual culture, and a rare although superficial 
refinement in letters. The movement for Secession was 
marked by a skill in its leaders that could ransack his- 
tory for their legal and diplomatic precedents ; and the 
growth of imperiahsm in England has drawn to itself the 
almost entire support of the literary class of the English 
race ; but Hterary and scientific culture is not always in- 
dicative of the moral strength and determination of a peo- 
ple, and the intellect divested of moral spirit is not a 
power working in the institution of righteousness, which is 
the condition of national being. 

But a Hterary or scientific test fails, because the act to 
which it is to apply is not of a literary or scientific charac- 
ter, and the qualification must be conditioned upon the 
nature of the act. These qualifications, to the efiect that a 
certain amount of property or a certain degree of hterary 
acquisition shall determine the fitness for the duties of a 
citizen, proceed from the notion that the character of man 
consists not in what he is, but in what he possesses ; that 
in the conditions of his action what a man has is to be pre- 
ferred to what he is. 

The real education of the people is to be provided for 
in the organization of political power. They for whom, in 
the want of a realized personality, the exercise of elec- 
toral power is not possible, yet have a right to the aid of 
all in the nation that may tend to its development. They 
are not to be left in political indifference because desti- 
tute of the capacity for political power. They have the 
right to be educated by the state for the state. Their edu- 
cation is to be regarded as the necessity of the state, and 
In the endeavor toward the development of their persona] 
power, the nation advances toward its destination. It is 
the formation of an independent manhood, so that he whc 



THE NATION AND ITS KEPRESENTATIVE CONSTITUTION. 233 

has reached his majority in years, is always in his political 
majority. 

The correspondent evidence of the law of representa- 
tion is in the fact that every divergence jfrom it, as the 
sequence of a false premise, issues in disaster. The sov- 
ereignty and representation of numbers, and the entrust- 
ment of political power to those, who have in themselves 
no ground for it, has only this result. There is no basis 
for electoral rights, when there is no capacity for elect- 
oral action. The force which is impersonal in the state, 
cannot be called upon to shape the destination of the state. 
The crowd, that is, the disorganized elements, the an- 
archic fragments, are not to be caUed to the government 
of the state. The power referred, on the premise of some 
abstract notion of rights in representation, to this impersonal 
mass, is a contradiction. This force does not and cannot 
offer a vote, when the occasion is open to it by electoral 
laws. Its action is expressive of no free and conscious pur- 
pose ; and called to act in the institution of freedom, and to 
incorporate it in the state, it moves only as some fate. In 
the construction of a moral order, it sweeps on as a phys- 
ical force, not as if directed by an inner will, but by a 
mere momentum. It is the casting into the scales, when 
the highest issues are to be decided, of a dead weight. It 
drifts, and Hke aU forces not guided in human life by a per- 
sonal power, it drifts downwards. Its course, apart from 
the real wiU and freedom of the people, is so inevitably 
toward the wrong, that the language of a clear and seLP* 
de terminate spirit is, "I have not gone with the multitude 
to do evil." It is the building not of an order, but of a pan- 
demonium; it makes the nation the confusion of strange 
tongues, and the Babel of incoherent and unmeaning 
voices. It creates a power which is not the will of the 
people, but is without the consciousness of the unity and 
svrder of the people. 



234 " THE NATION. 

The object of every political constitution is to exclude 
this element, that is, the impersonal mass, from authority 
in the state. The reference of power to it subjects the 
organization of society to brutal force, while the whole 
effort of civilization has been to wrest it from that blind 
and unthinking sway. It is this which has been the con- 
stant aim and the condition of freedom. 

This reference of power to mere numbers, that is, the 
impersonal mass, is justified by no right. It is a barren 
sceptre, and in the defect of sovereignty in itself it cannot 
act for its institution in the state. It is not the assertion of 
the sovereignty of the people, but the negation of sover- 
eignty and of the people. Its exclusion is no violation of 
the law of democracy, but is necessary to the assertion 
of democracy. Its exclusion is not despotism, but its in- 
clusion is the worst despotism, — the absolutism of a 
multitude, not the government of a free people. It is a 
rabble of men which is called to the expression of the 
thought and purpose of the political people. It is a form- 
less waste, out of which the determination of the form of 
the state is sought. It is the necessary degradation of the 
whole, and the state supplies in itself the instrument of 
corruption. It does not act with freedom, and it will not 
act for freedom. It falls under the influence of parties 
and sects, to be used for their special ends. It becomes 
subservient to men who will employ it for the accomplish- 
ment of selfish schemes, or the furtherance of their own 
ulterior interests. Its subjection is to the domination of 
those who can rule masses, but cannot rule freemen, and 
it becomes the instrument of the designs of the demagogue 
or the priest or millionaire. 

The multitude is everywhere dangerous to the state 
but the bestowal of power upon it is to place the arms 
of her arsenals in the hands of the blind. It is the un- 
reason of the state when it calls upon ignorance and vice 
and crime to determine its career. 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 285 

This investiture of the impersonal mass with political 
power, — the mere representation of numbers, — justifies 
aU the scorn which has been spoken of it by the best of 
men. There is a comprehensive truth in the words, so 
exact, as the political expression in Shakes"o<iare always is, 
—' where 

" Wisdom 
Cannot conclude but by the yea and no 
Of general ignorance, — it must omit 
Real necessities, and give way the while 
To unstable slightness. Purpose so harr'd^ itfoUow$f 
Nothing is done tojmrpose." 

The result is, that it — 

" Bereaves the state 
Of that integrity which should become it, 
Not having the power to do the good it would, 
For the ill which doth control it." i 

The result of the bestowal of political power upon the 
mass appears in the government of the municipahtj of New 
York. With the qualifications prescribed by electoral laws, 
the danger disappears in a great commonwealth, while it is 
apparent in a city where large numbers are congregated, 
whose education under an imperial or ecclesiastical dom- 
ination has left them without freedom. The people are 
used to increase the wealth of a few individuals. 

There has been a special justification sought for this 
bestowal of electoral power in its educational influence 
upon the individual, as invoking a sense of responsibility. 
It is true that the nation, without reference to the exercise 
of electoral power with this object, is the mightier power 
in the education of the race ; but the bestowal of electoral 
power, with the special design of the education of certain 
individuals, avoids the content of the act and considers it 
primarily in the interest of the individual apart from the 
state. Its value as an educational influence upon the mass 
is not apparent, since in the want of independent action it 

1 Coriolanus, act 3, sc. 1. 



236 THE NAnON. 

becomes the instrument of any who may get domiftioB 
over it ; it induces also a low conception of a vote and of 
the government itself. The gain which may appear in 
some instances is at the most slight, in comparison with 
the detriment to the whole. The education of the few by 
this method becomes also as costly as it is perilous, as for 
instance in the municipahty of New York. 

This bestowal of electoral power has been justified also 
as a means of protection, and has been called by a senator 
'' the protection of ignorance and weakness." To call upon 
ignorance in this way to protect itself, is to impose upon it 
an office of intelligence and decision of character. It is 
only in justice and foresight that the protection of igno- 
rance and weakness is found. When the control of the 
state is given to ignorance the safeguard of rights is de- 
stroyed. The vote of the city of New York is cast blindly 
against the public interest, and subserves the private 
schemes of men. If protection alone, and not a realized 
freedom, were the end of the state, power assigned to igno- 
rance and weakness would not ensure it. 

The necessary nature of electoral power discloses the 
evil of a condition of affairs which, in the abandonment of 
character and freedom and the degradation of personality, 
is fraught with the deepest corruption. In the absence of 
the organization of the civil service and administration, it is 
the condition in which public offices and trusts become 
the instruments of power, so that their places and pay 
are held to further private and partisan designs, and as 
agents or tools to control men to certain special uses and 
ends. The profits of office are used to buy voters, and 
the promise of office is held before them as an equivalent 
for their vote, or the threat of removal is used to intimi- 
date them in their vote. Their vote is unfree and of it- 
self is made the instrument of their corruption. It works 
vith injury alike to the individual and to the whole. It is 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 237 

the more immoral, for it is tlie use of tlie powers of the 
nation to subvert its moral order. Thus there are those 
who refrain from the thorough organization of a civil ser- 
vice upon the simplest maxims of economy and prudence, 
because they can use its offices to ftirther private and par 
tisan ends and to build up their own power, and an imper- 
fect civil organization becomes the pretext for their course. 
It is the undermining of the fr-eedom and the defeat of the 
sovereignty of the people. 

The pubhc offices and trusts of the nation are held as 
patronage. The word is consistent with the barbaric con- 
stitutions in which power was held as a private estate ; 
the ruler was a patron and the place belonged to his patri- 
mony. Yet however democratic the pretense of the form 
of the state may be, to hold these positions as a means 
for private or partisan ends is beneath the barbaric consti- 
tutions, for if they allowed this patronage to the prince, it 
was because he alone was presumed to be in identity with 
the state. In the existing condition, the offices and trusts 
are held, not as in the service of a free state, but as an 
imperial boon. It is, in the interest of a class of so-called 
poHticians, the building of a power independent of the 
people, and to become a means of their degradation. To 
allow these men to offer offices as a recompense for action 
in their behalf, or to remove or threaten any with removal 
from offices they have faithfrilly administered, on account 
of their independence of poHtical action, is bribery. And 
when workmen in national armories and navy yards, who 
are dependent for their daily support upon their daily 
labor, have their places used as an instrument to control, 
their vote for private or partisan ends, the political crime 
an scarcely be surpassed. The national offices and trusts 
je employed to control men as evil dominations control 
them, in the subversion of their freedom. They are 
driven to vote as a gang. It is the same in result, when 
the bribe is tendered by an individual or a party, and in 



238 THE NATION. 

money in hand, or a place of corresponding pecimary 
value, and there is no distinction if the workman be dis- 
charged jfrom a plantation or a navy yard, or driven from a 
farm or an armory on account of his vote. 

The pubhc service is conducted not only without regard 
to prudence and economy, and honest and efficient adminis- 
tration, but national offices are used by those in power to 
retain power and promote their private ends ; or in the 
triumph of a party, they are held as booty won on the 
field, to be divided among its retainers. The consequence 
is also the filling of public offices with bad and irresponsi- 
ble men. The vote of those who are thus controlled is no 
longer a free, that is, a responsible act, but is the service of 
a dependent and the assent of a valet. It has no more 
worth than the act of a slave, the man who does not know 
his own mind and cannot call his will his own. The cor- 
ruption works in those who give and those who take the 
bribe, and one who uses these means to control men be- 
comes destitute of self-respect as he destroys the self-re- 
spect of others. It frustrates the free and independent 
purpose of the people, and there is in it the degradation 
of character. 

The nature of electoral power is inconsistent, also, with 
the singular proposition, that in certain sections or dis- 
tricts, representation should be made necessary, and a vote 
should be compulsory. It has been said, that men might 
be required to send representatives to the government, but 
this would be a form with no representative character. 
It would be only the authority compelling the act which 
was represented, and this could act immediately with 
better consistency. The action when thus required would 
not be the representation of free men, and would not have 
the worth of the power which in some plebiscite obeys an 
imperial will. 



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 239 

Tlie necessary principle of representation illustrates the 
strength and also the weakness, in that conception which 
describes the government as the representation of public 
opinion, or public opinion as the basis of the representative 
constitution. It is true that public opinion appears only in 
the organization of society, and there is in it the indication 
of an aim beyond the private and separate end of the in- 
dividual. But government is not constituted in the rep- 
resentation of public opinion, and there is not in this the 
sovereignty or the freedom of the people. 

There is in public opinion the unformed thought of 
men, or thought as it is being formed. It thus takes its 
color from the changing impulse and emotion and passion 
of the moment, and reflects its hopes and fears. It denotes, 
indeed, in some phases, the purpose that will endure and 
assert itself with irresistible might ; and in this is the ex- 
pression of the conviction of the people, that will hold on 
against the treachery of those who have been called to 
power. It is thus that it indicates often the course and 
tendencies of historic movements. But it denotes often 
the confused agitation rather than the stable purpose, the 
impulse instead of the deliberation of the people. It is 
the rude and crude thought, often obscured by prejudice, 
and it acts often in an imperfect knowledge of events. Its 
organs thus are informal forces, and not recognized in the 
constitution of the state ; as, for instance, the popular ru- 
mor, that is, the mere " report of a report," the public lec- 
ture, the newspaper, the course of the exchange, the talk 
of the street. It is always undefined, and there is no 
power whose authentic expression it is so difficult to ascer- 
tain, or which is so open to imposition, since some alien 
purpose may often raise the noise and counterfeit the voice 
and assume all the guises of pubhc opinion ; there is no 
vehicle of pubhc opinion, as the newspaper or pubhc lec- 
ture, but may be set in motion by an alien power. It is 
indeed the secret or anonymous form of these agents, as 



24(1 THE NATION. 

the common rumor or newspaper article, that thus enables 
them to serve a foreign opinion. 

The statesman must learn to estimate the strength and 
the weakness of public opinion, and when and how to re- 
gard and to disregard it. It is always to be considered 
and weighed as a positive force in the conduct of affairs, 
and those who acted in indifference to it, would expose 
their measures to the unnecessary risk of disaster. It is to 
be regarded in any course of action, with respect to what 
it may indicate in the mind of the people. But so far 
from an immediate representation of it, it is always to be 
held as a force which has not even a law of discrimination, 
whereby its own thought and purpose may become clear. 
The disposition to overestimate it is a characteristic of 
weakness. It is more often not itself clear, and instead of 
being the guide of the state, needs a firmer intelligence to 
guide it. He who would have even its support in the long 
run, must be strong alike to lead and to resist ; he must 
learn to apprehend the enduring purpose of the people, and 
to hold it against betrayal. The danger is that men who 
are untrue to themselves, and thus without self-respect or 
rectitude, will listen for it blindly, and follow its uncertain 
voices, until in their weakness they lose their foothold, and 
are swept away by its current. 

To regard the representation, therefore, as that of public 
opinion, is obviously defective. It cannot and is not to 
govern. To regard the government as only its represent- 
ative, would argue a defect of will. There would be in 
it the subversion of personality. The power which be- 
came its exponent to indicate its courses and the shift in 
its changes, would be no longer a real government. It 
would open the way to " unstable slightness." It wou^d 
yield in the panic of unformed thought. It would be the 
regiment of those who start at the shaking of the leaves. 
In the agitation and surging of its crowd, they that wouIg 
aim only to follow it must leave the place of leaders, ano 



THE NATION AND ITS EEPRESENTATIVE CONSTITUTION. 241 

become lost in its multitude as their call is drowned in its 
tumult. If they rise for a moment upon it, it is only to be 
swept away by its tide. 

The peril is thus in regarding public opinion, not to con- 
sider what it may indicate, nor what may be its force, but 
blindly to obey it. Then in this servihty there is the pros- 
tration of manhood. Then it is made the substitute for the 
conviction of duty, and a foundation is sought in it instead 
of the steadfastness which is " buttressed in conscience 
and invincible will." To turn from a central rectitude, 
and the inner light, and the eternal word, to this micertain 
voice, which has in itself no law by which it may become 
clear, is to follow the shout of the multitude. It is the 
abdication of government when statesmen look only to the 
popular voice in its momentary changes, and seek the ora- 
cles that peep and mutter, and join in the common super- 
stition that caUs for its favorite magicians and soothsayers. 
At last the inevitable weakness of these men incites only 
the contempt of the people whom they could not gov- 
ern, and whom they could not guide when called to go 
before it. 

There is another phrase which has become the formula 
of a certain scheme in representation — the representation 
of minorities. This presumes an arbitrary division of the 
majority and the minority, and then asserts an injustice in 
the reference of the conclusion in political action to the 
former. The principle which it aims to establish is the 
actual representation of persons ; but it has been made 
complex not only by not apprehending the necessary prin- 
ciple, which alone gives it consistency, but by the intro- 
duction of extraneous notions, as for instance, the proposi- 
tion for a plurality of votes. 

While the aim is always to oe an ampler and more 
perfect organization in the representation of persons, this 
principle demands tli 3 exclusion of whim and willfulness, 

16 



242. THE NATION. 

the mere caprice of men. It also demands the clearer 
determination which is implied in the representation of 
persons; and as the principle is embodied in the nation, 
the government becomes more resolute and more positive. 
The government is necessarily to have strength and energy 
of purpose, and authority is to have a clear and imequivo- 
cal assertion; and so vast an impersonal mass is already 
allowed to act, that the form of the political decision of the 
majority alone may give a positive and conclusive expres- 
sion to the political will. In another form there might 
result the most grave disaster in a paralysis of power and 
will. 

The charge which is associated with this phrase of a 
tyranny of the majority, has no justification on the postu- 
late assumed, nor in the course of government. There 
has been in history no power so devoid of tyranny as the 
political majority ; and the more frequent invasion of 
tyranny in modern nations has been in the effort through 
violence to override the will of the majority of the political 
people, when asserted in the order of law. If the ma- 
jority is actually tyrannical in its spirit and intent, no 
scheme for the protection of minorities, which alone can 
be sustained by the majority, would avail, and tyranny in 
some form would be inevitable. It might be inferred from 
the assault upon the .political majority, that the oppression 
of the world had been consequent upon the political action 
of the majority of the political people ; but the fact is that 
the tyranny has always been the power of the minority 
acting with no conformance to a constitutional order, as 
the despot or dynasty, the hereditary or monetary class, 
some family or collection of families, bound by a tie among 
themselves ; and these have held the whole as their pos- 
session, and subordinated it to their own special ends, 
The majority also is constantly changing and being re 
solved in the people, but these powers perpetuate them- 
selves. The assault upon the political majority has ofter 



THE NATION AND ITS EEPRESENTATIVE CONSTITUTION. 243 

seemed to start from the premise that its act is held as the 
standard of truth, and not as the form for ascertaining in 
the poKtical order the determination of the poHtical people, 
and for the enactment of laws which are over all. The 
poHtical majority has always heen the method of ascertain- 
ing the conclusion of a representative body, as for instance 
in England, where not only the sovereignty of the parlia- 
ment is assumed, but where there exist no limitations 
upon its power corresponding in force to those in the 
United States, and its members are elected by a majority, 
and while its law is enacted by a majority, submission is 
commonly rendered to it, while of course no just effort is 
prevented, to effect its change or repeal.^ 

In the past the will of the majority has been the most 
beneficent form in which the government of the pohtical 
people has been instituted. There has been in it a moi^e 
constant recognition of a principle of right which is over 
all, and an endeavor to substitute it for the arbitrary ac- 
tion of an individual or a class ; and it has sought, though far 
from its better realization, more steadily the well-being of 
the whole against the design of a few as an individual or 
a class, and far more unfrequently than they has it been 
diverted from its end. 

There is an illustration often drawn from the action of 
the mass, or the fragments of a disorganized society, against 
the action of the organic people. The cry of a Judaean 
mob or a Roman rabble is made an argument of accu- 
sation against the nation and the expression of the or- 
ganic will. But in these instances, the illustration is of 

1 The fonn of representation was a subject of discussion, in the Colonial 
period. " The Governor, Commissioners, and Council took upon them the leg- 
islative power, and the People were governed by their Ordinances until an as- 
sembly was called which privilege was then declared to be the People's Right." 
— "A great part of the injustice d9ne in the Colony may be ascribed to an tin* 
equal proportion in representation ' — Samuel Mulford, 1714. Doc. Hist of N. 
F., vol. iii. p. 367. 



244 THE NATION. 

the influence of imperialism. It was wlien the national 
spii-it and life of Judaea was lost, and her unity was broken 
in the increase and pretension of parties and sects, that 
a mob was gathered, and the crowd, that shouted for the 
release of Barabbas the robber, and for the condemna- 
tion of one who came to manifest the power of a king in 
the service of humanity, appeared when the multitude had 
already learned to cry, " Caesar is king ; we have no king 
but Csesar." This is no illustration of the action of a 
people, but of the mob which is not a people ; it is no argu- 
ment for accusation agamst the people, but is the evidence 
of the degradation of men under an imperiahsm. 

In this principle the political spirit and political will has 
its true expression. It is to be held as a constant aim, 
and there can be no estimate of the higher power which 
it will bring. But the change in the application always 
in larger and nobler forms, can be the result of no laws, 
and it is to come in the wisdom of the state. It is to come 
in the development of the state, and not before its time, 
when it could involve only peril and disaster to the 
whole. 

In this period, as in every period of transition, when 
the order of things is disturbed by a vast migration of 
races, there is so large and indefinite an impersonal mass 
casting its heavy weight in elections, that its uncertain in- 
crease is to be guarded against, and the change which has 
elements of progress must be in reality as in form, and in 
the development of the nation in its moral being. The- 
conditions and qualifications of electoral power have a uni- 
versal premise and law, but the aphorism de minimis non 
curat lex is necessary, and while this in individual instances 
and to certain persons may involve an apparent wrong, yet 
the extension of political power to the inclusion in electora, 
action of a vast number who have no fi:eedom of wiU^ 



THE NATION AND ITS EEPEESENTATIVE CONSTITUTION. 245 

and no capacity for political action, involves a far greatei 
wrong to the Mgher personality of the nation, and the 
detriment of the whole. 

The electoral right is a political right, and affects prima- 
rily the political people, and it should have in the constitu- 
tion of the whole its enduring guaranties, and its sanctions 
should be estabhshed in the supreme law. The constitu- 
tion defines the conditions of electoral power, and the 
writings of President Madison indicate that it designed this, 
but it defines them as inclusive of the conditions estab- 
lished in the administrative order of each commonwealth 
for the election of its lower house, and the more definite 
description is referred to the commonwealth. It is true 
that there is a certain advantage in this, since an extension 
of suffrage might be made in the commonwealth, which 
in its limited sphere, would not involve the peril that might 
result in an extension through the whole, and the method 
of amendment in the constitution of the commonwealth is 
more free ; but there is often wanting in the separate com- 
monwealths the spirit which pervades the political whole, 
and there is a want of the comprehension of the well- 
being of the whole, and the conditions in each common- 
wealth may differ so widely as to impair the unity of action 
in the whole. 

By an ingenious exegesis and collocation of clauses in 
the constitution, the specific designation of the qualifica- 
tions of an elector may now be claimed as withm the 
Dower of the Congress, but the assertion of political rights 
nust require no ingenious argumentation. There is not 
in that the stable ground necessary for the institution of 
rights, and the argument on which they are assumed to rest 
may be met by some other argument, and argument is not 
conclusion. The indifference of this school to the secur- 
ance of clear and express guaranties for rights in the posi 
tive law, is the source of the distrust of its state smanr>hip 



246 THE NATION. 

with the people. The disposition to be satisfied with some 
argument, however subtle, indicates the defect in the 
thought of those who dwell in the abstract conceptions of 
rights, rather than toil for their substantial realization in 
institutions. 

The RepubHc is constituted in the representation of per- 
sons. There is in this the institution of the actual sove- 
reignty and freedom of the people. It is the organization 
of the republic in the democratic principle. There is 
strictly no democratic form of the state. There may have 
been at a certain interval, in some of the municipahties 
of Greece, in the organization of the whole people in a 
public assembly, some correspondence to it, but it was nec- 
essarily limited, and there is no historical nation but tran- 
scends the possibility of a democratic form. But while 
there is no democratic forni of the state, there is a demo- 
cratic principle. It is the principle, in which every per- 
son who is a member of the nation is to be called to act in 
the normal determination of its government, and the gov- 
ernment is to be in the name of the whole. The form 
of the state in which the democratic principle is reahzed is 
the republic. 

The electoral law is the law of the Republic. This law 
has in the most varying forms the wider historical justifi- 
cation. The only comparison would be with the law of 
hereditary, succession, and the latter claim can scarcely be 
sustained, even with the long monotony incident to its 
periods. The latter has assumed an apparent security, 
since it has an immediate provision for the fiiture ; but 
to leave the government to the accident of birth, and 
\o restrict it to the line of a certain family descent, with 
the contingency of the intervals which are described as a 
regency, is not the most provident constitution. It has 
been from century to century interrupted by a disputed 
succession; and where the hereditary principle has beer 



THE NATION AND ITS KEPEESENTATIVE CON»riTUTION. 247 

maintained, as in England, in historical crises it has been 
disavowed, as in the revolution of 1688 ; and these crises 
have been more often the precedents of national power. 
The sovereignty in certain families, as in England, has 
also become only a formal sovereignty,^ that is, only the 
institution of sovereignty. There was courage and chivalry 
in the house of Plantagenet, and there was strength to 
rule in the house of Tudor, and there was always a courtly 
dignity and recognition of public duties and pubhc offices 
in the house of Stuart, but it is difficult to associate a 
conception of sovereignty with the existing house, and in 
this aspect the later line of its kings seems a sad and 
fantastic procession. The famihes which have held the 
government as an inheritance, have not differed from 
other famihes ; they have not been exempt from the law 
in which the sins of the father are visited upon the chil- 
dren, nor could they claim more than the blessing which 
showeth mercy unto thousands. A recent writer has said 
that the constitution of England, its king and peerage, 
rest upon a power of great influence, although held 
sHghtly by the philosophers, the power of visibility. It 
is rather the opposite, the power of illusion. The haze of 
old political traditions veils them from the sight, and in 
their elevation above the people they are not visible as 
they actually are. The hereditary principle is thus main- 
tained in a sovereignty with indifference to the actual 
character of the monarch, or it is an institution without 
reference to a person ; negative quahties conform to it, and 
there is in it no representation of the nation as a person, 
and only by some figment it is described as a national 
device, — " only the dot over the i." 

1 In the constitution of England, the crown has not tte strength which the 
executive has in the United States. Mr. Disraeli is one of the few stateamen 
<vho have noticed the increasing incapacity or lapse of executive power. Tha 
crown is a power without reference to the character of its occupant. It is said 
the Parliament has become the sovereign, but th^ Parliament, in certain respects, 
18 not sovereign; it is destitute of the power M'hich should be vested in the 
legislature, as, for instance, the power to declare war and conclude peace. 



248 THE NATION. 

The electoral law was the form of the Roman empire 
and of the German empire of the middle age. It was 
the law of the church ; and the popes, as also the bishops 
and abbots of the middle age, were elective. In Venice 
the doges were elective. In Eome the hereditary law was 
modified by a form of adoption.^ 

It is as the representation of persons, that the republic 
is formed in the moral determination of the people. Its 
necessary foundation is in the virtue of the people. Mon- 
tesquieu defined this as the principle of the republic. It 
is the foundation of society in every form ; but it is the 
very condition of the order of the republic. 

It is said that the republic is a monotony, and its level 
a low and dead level. The contrast is then the formal 
gradation of society, the construction of lower and middle 
and higher classes. The greatness which appears here is 
comparative. Its aim is the formation of a conventional 
type. But in the republic the political people hold their 
own conscious aim, and reflect and determine their own 
end. It is then a necessity that the republic should have 
more of life. Its life is always necessarily one of endeavor 
and conflict, or the government must lapse into some other 
form. Its greatness is only that of a realized personality. 
The long monotony of a despotism is in contrast to the 
ceaseless movement and agitation of the republic, and the 
latter in its stability demands a higher energy, a more 
constant vigilance of the people. But the moral life must 
necessarily follow this law, and in its advance is always 

1 Macchiavelli says that " most of the lineal successors of the Roman emperors 
turned out badly, while those who were adopted did comparatively well." 

Aristotle maintains a partly eleetive law, rather than a strictly hereditary mon- 
archy. — Politics, bk. ii. ch. 8. 

Cicero says in a passage of smgular force, " Nevus ille populus, — Romanus 
— vidit id, quod fugit Lacedemonium Lycurgum, qui regem ncn diligendem 
duxit sed habendum, qualiscimque is fuit, qui modo esset Herculis stirpe gene* 
ratus. Nostri illi etiam turn Agrestes viderunt, virtutem et sapientiam, regalea 
fMi progeniem quseri oportere." — De Eepublica, bk. ii. ch. 12. 



THE NATION AND ITS REPEESENTATIVE CONSTITUTION. 249 

the more quick, and tlie more unresting and unsatisfied, 
and borne into Mglier and intenser conflict. This has its 
illustration in the energy and devotion and sacrifice which 
give nobility to the pages of the history of nations. This, 
says Rothe/ is the nature of an holy life, and that it is the 
more unresting, and that as a consequence there may be 
the loss of some apparent material advantage to the state, 
is not to become an argument of opposition to it. 

The offices and powers of the repubhc constitute a 
pubHc trust. They are not held as a private estate. In 
England the higher positions are held as a private invest- 
ment, and in the army and navy commissions are open to 
purchase and sale. 

The representation of the Repubhc is of a person by a 
person. It is not of one person in substitution for another, 
but in commmiity with another. To regard one person as 
in the place of another, would be the negation of person- 
ahty, the representation of a person by a form or symbol. 
The representative violates his own personality, if instead 
of standuio; in his own free and conscious self-determina- 
tion, he aims to follow a constituency and to stand in iden- 
tity with that. Then he is no longer free in his own will 
and knowing his own mind, and the result can be only 
the weakness and instability of government. 

The representative is a person, and is the representative 
of the moral personahty of the nation, and therefore in 
the realization of that acts immediately only in relation to 
the nation and to God. It is the law and the majesty of 
the nation, in its unity and its freedom, and as a govern- 
ment over the whole, that is to be realized in his deter- 
mination. He is not the blind and mechanical instru- 
ment or exponent of an external will, as a constituency oi 
a party, but stands in the will and determination of the 

1 Kothe, Theologische EihiJc, vol. ii. p. 126. 



250 THE NATION. 

state, wMch is not external to him, but is to be realized in 
him; but every formal notion of the nation forbids this, 
since then the representative has only a formal relation to 
the nation, and is representative only of separate parties or 
certain persons in it. 



CHAPTER XIII. 

THE NATION IN ITS SOVEREIGNTY, IN RELATION TO OTHEB 
NATIONS. 

The sovereignty of the nation, is the manifestation of 
its power, in the historical life of the world. Its external 
sovereignty is apparent through its relations to other na- 
tions, and in its sphere in history. While its internal 
sovereignty appears in its government and order, and the 
assertion of its will, as the supreme law ; in its external 
sovereignty it exists in its unity and independence in re- 
lation to other nations. 

The recognition of a nation becomes thus one of the 
most impressive events in history. It rests on the con- 
sciousness, in each of those who act in it, of its sove- 
reignty, as a power in history. It reflects the majesty of 
a power existent in its unity, in the moral order of the 
world. This recognition of one nation by another as thus 
existent with all the sovereign rights of a nation, can never 
be divested of historical solemnity. Prom the unformed 
life of men existing with no consciousness of political unity 
and order, and sustaining only some tribal relation, there 
emerges a new nation, to be recognized in its sovereignty 
by other nations and to enter its course in history. The 
appearing of a new planet in the wide fields of space, to be 
followed in all its circles in the physical order, is not so 
impressive as the appearance of a nation which is to exist 
as a power in history, and to aci" upon the destiny of man 
in that grander order, the order of a moral world. From 
the vacant centuries that have furnished nc element of 
unity or freedom or fratemi+y, there rises a power which is 



252 THE NATION. 

to hold a conscious moral aim, and to act as a conscious 
moral energy. 

The sovereignty of the nation has thus its immediate 
external manifestation, in the recognition of nations. It 
is the moment in which there is a conscious realization of 
the historical power of a people, and each stands towarc 
the other in a recognized sovereignty in the world. Thia 
recognition presumes in the power which is recognized the 
capacities which belong in its necessary being to a nation, 
and in which it is constituted as a nation. The nation 
recognizes in another, that which it is conscious of possess- 
ing in itself, in its own necessary being. It recognizes 
not a mere association of men in a certain locahty, under 
a certain form of government, but a people as a nation. 
There can be no recognition which does not imply this. 

This recognition presumes then respect toward the na- 
tion recognized as a nation. It must concede to it the 
rights, which in its own necessary existence it asserts for 
itself. There is the application here of the fundamental 
law of rights, — be a person, and respect others as persons. 
This law is implied in the being of the nation as a moral 
person ; it is the necessary postulate of rights and of 
duties. From this then proceeds the recognized right of a 
nation to determine its own political end; the right to 
establish its own political form ; the right to exclusive leg- 
islation in its domain; the right to self-preservation, to 
independence, to property ; the right to exist in a common 
relation to other nations. In the existence of the nation 
as a moral person, is the postulate of the sacredness of 
the principle of non-intervention. The recognition of it, 
in its sovereignty, necessarily presumes a deference for its 
self-determination and its freedom. It is to control its own 
order, and is to be respected in this, and no other nation is 
to intervene in its internal administration. 

This recognition presumes that the nation which is thus 
recognized, shall itself respect the rights and powers of 



THE NATION TO ITS RELATION TO OTHER NATIONS. 253 

other nations. There is the assumption of the formal 
obligations of a nation. It is to yield respect to others, as 
it asserts its own self-respect. The principle which is here 
also the ground of action, is the identity involved in the 
necessary being of nations. 

The recognition of a nation is thus a continuous act, and 
so long as there is moral integrity of action, it is limited 
only by the formal existence of the nation itself. It is not 
therefore to be momentarily offered, nor to be arbitrarily 
withdrawn. It is the expression of the continuous relation 
of nations in their existence in history, and proceeds from 
the postulate of continuity in the nation. 

While the recognition of one nation by another nation 
is one of the highest acts of external sovereignty, the right 
to recognition is a formal right and the demand for recog- 
nition can be only formal. A people may exist with a 
manifest unity and sovereignty, and with entire independ- 
ence and freedom, and be in reality a nation, although it 
receive no recognition from other nations. Whether it 
be in reality a nation, is to be determined only by its con- 
tent, that is, the internal sovereignty which is manifest in 
law and freedom, and the external sovereignty which is 
manifest in independence and self-subsistence, but its rec- 
ognition depends only upon the determination, in the judg- 
ment of another, whether it be a nation. 

This recognition of a nation is not simply the recognition 
of a certain succession in government, although it is neces- 
sarily through a government. It is the recognition of the 
nation, which in its sovereignty may determine its own 
government. The act is through the government which 
the nation ordains tor itself, and the government thus con- 
stituted, whatever its form, is alone legitimate. It does 
not foUow, therefore, in any event, after the recognition of 
a nation, that communication is to be opened with some 
transient power which, perhaps through the aid of a for- 
eign imperialism, may be imposed upon a people from 
ndthout. 



254 THE NATION. 

The sovereignty of tlie nation in its external relations is 
indicative of the place and vocation of the nation in his- 
tory. It is manifest through it as an integral power in 
tha moral order, which is history. This is the premise of 
normal international relations, and the system of interna- 
tional laws. Since the nation has its vocation in a mora] 
order, and its end in the realization of the destination of 
humanity in history, the nations exist in an international 
relation, which has for its condition a moral relation, and 
the system of international laws is definitive of the moral 
order in which these relations come forth. The nations, 
in the attainment of their necessary end, are constituted in 
a moral order. They cannot therefore, in the development 
of national life, remain in isolation and indifference. While 
a collection of men has no consciousness of national life, 
it does not and cannot concern itself with other peoples 
which exist as nations, except as some fragmentary mass 
is concerned in the pursuance of some private interest ; but 
if there be the development of national hfe it is brought 
into a relation to other nations. The formal definition of 
these relations is the office of international law. As these 
relations consist in the moral order of history, their am- 
pler expression will come in the higher realization of the 
being of the nation in the moral order of history. But the 
merely formal character which the science of international 
law has in the work of its yet greatest master, bears the 
impress of his whole pohtical conception, and of the formal 
political tendencies of his age.^ 

The science of international law has its foundation in the 
being of the nation as a moral person ; this is the condi- 

1 " Grotius was not a generative thinker. If the difficult problems of the duties 
which one nation owes to another had been discussed in a Baconian spirit for 
the purpose of ascertaining what those laws are which bind voluntary agents — 
if it had been shown historically how these laws, though they may be broken by 
men with arms in their hands, nevertheless avenge themselves, something would 
have been gained. But mere maxims which define accurately and peremptorily 
what should and what should not be done, must be rather hindrances than helps 



THE NATION IN ITS RELATION TC OTHER NATIONS. 255 

tion of tlie rights and obligations wliicli it is to embrace 
and define. And as the nation advances in the reahza- 
tion of its being, the science which has for its pro'V'ince the 
definition of the law of international relations will be- 
come constantly the expression of a development in wider 
and more varied relations. It is regulative of relations 
deeper than those formed simply in the adjustment of con- 
troversies arising among nations out of a state of war, or 
those which are the dictate of a mere international cour- 
tesy, although the principle of rights presumes this cour- 
tesy. It is this conception of the nation as a moral being, 
which has given to the work of Wheaton an almost his- 
torical position ; and however briefly defined, its clear ap- 
prehension of it has been the soui^ce of an influence which 
can attach to no mere manual of rules or collection of pre- 
cedents, in a science which has no acknowledged tribunal. 
Wheaton says, "every state has certain sovereign rights 
to which it is entitled as a moral being ; in other words, 
because it is a state ; " and again, "every state as a distinct 
moral being, independent of every other, may fi:'eely exer- 
cise all its sovereign rights in any manner not inconsistent 
with the equal rights of other states ; " and again, " all 
sovereign states are equal in the eye of international law, 
whatever may be their relative power." These proposi- 
tions are constructive in the work of Wheaton.^ 

The progress in international law can come only in the 
clearer apprehension of the being of the nation, and the 

to an actual moral science. Yet the value of the work," the writer adds, "is in 
ts evidence that these relations have some moral ground; that they cannot be 
k'ft to be determined by accident, nor commercial cupidity, nor a Macchiavellian 
policy." — Maurice, History of Philosophy, vol. iv. p. 324. 

1 Wheaton, International Law. Dana's ed. pp. 52, 89, 100. 

R. von Mohl has criticized the work o' Wheaton as unscienti5c, a confusion 
or miscellany of law, contemporary politics, and history; but whatever may be 
its defect of method, — and that certainly is obvious enough, — its moral spirit 
and conception has given it an historical mfluence and position beyond almost 
any modem work on the subject. — Liter aieur und Geschichte der Staatsii>isse»- 
tchaften^ vol. i. p. 399. 



256 THE NATION. 

consequent assertion of the riglits and correspondent duties 
involved in that. It will await the institution of no tri- 
bunal, whose formal judgment will be a finality. In the 
nature of the nation in history, there can be no tribunal 
and no congress which shall be in itself supreme, and 
possess over the course of nations an ultimate and impera- 
tive control. As the nation is constituted as a moral per- 
son, it cannot abdicate its responsibihty which is given in 
its being, and can, in its ultimate determination, be re- 
sponsible to none on earth, but only and immediately to 
God. 

The nation will hold in its own determination, so long 
as it exists in the conditions of history,' the issues of war, 
on which it enters in its entire being. It may act in cer- 
tain circumstances through another, and it may refer the 
exposition of certain principles, or the estimate in the ad- 
justment of certain concerns, to the judgment of another ; 
but in this it may not act so as to impair its sovereignty, 
or to surrender its moral responsibility. 

In the realization of the being of the nation in history^ 
there will be manifest among nations a deeper relationship. 
In their greater strength, and as their end is apprehended 
in the realization of the destination of humanity, there 
will come a more enduring peace. The advance of hu- 
manity is indeed slow ; but in the solidarity of nations they 
>vill discern the sources and conditions of their aid to each 
other, and that all must suffer in the detriment of each. 
Then will come the sympathy and the helpfulness, which 
there is among men, who march toward the same goal, 
and at last must march all together if at all. It is there- 
fore no dream, but the coming of a new life, which holds 
the prophecy and the realization of the fraternity of na- 
tions. In the development of history this relation is be- 
coming more perfectly apprehended, and as mankind reo» 
ognizes more deeply the universal fatherhood, thers is 



THE NATION IN ITS RELATION TO OTHER NATIONS. 257 

manifested in the Christendom of nations the family of 
nations.^ 

1 Napoleon III. pronounced the award in the Universal Exposition, " in the 
name of the family of nations." Thiers and Guizot have shown the course 
which would have represented the selfishness of France; but the idea of the 
fraternity of nations has always awakened in the spirit of modern France an 
emotion, and has stirred it with hopes beyond any appeal to selfish interests. 

The tendency of modem diplomacy is, to become more open, and the old de- 
vices and disguisements of merely sinister schemes and tortuous courses con- 
stantly avail less. But there is no estimate of the danger and disaster involved 
in the weakness and cowardice of nations, in not meeting as men. 

The premise of international rights is given in the postulate of Hefiler, as cited 
by Wheaton : " Law in general, is the external freedom of the moral person. 
This law may be sanctioned or guaranteed, or may derive its force from self-pres- 
ervation." — " The jus gentium is formed on reciprocity of will." 

The refusal of England to submit her action in recognizing the Confederates 
in rebellion as belligerents, to arbitration, proceeds upon the ground that it was 
an act of England in her sovereignty, and may in itself be referred to no arbi- 
tration ; but it was a deliberate act, within her control, and the injuries to this 
nation which were resultant from it are therefore within her responsibility, and 
may be submitted to an arbitration. 

Their recognition as a belligerent power, by a nation, before the circum- 
stance of war involved any necessity for it, tended necessarily to elevate them to 
an equality with the nation, and gave them all the advantages which arise from 
regulations shaped to apply to nations, in defining national rights in time of 
war. This was the constant security of the Alabama in British ports. The 
neutrality of England in the circumstance of war became nominal. 

Mr. Gladstone attributes many of the recent difficulties of England to her 
recognition of any power as a nation, when a transient interest may dictate. 
There was more than this in the eager manifestation of satisfaction at the peril 
approaching the American people. It would seem to have been a sudden dis- 
losure of the spirit of the English toward the United States. If the disclosure 
was terrible, it would be weakness to forget it and peril to overlook it. 

Mr. Gladstone, who seems never to have heard the Hebrew national psalms 
said or sung, said, as a minister of state, that " Jefferson Davis had made the 
South a nation," and the remark is mainly significant as indicating among the 
statesmen of England the conception of what constitutes a nation. The sym- 
pathies of nations are more subtle and profound than are those of individuals, 
and the causes of the sympathy of Prussia and Russia and Italy for America, 
and the active sympathy of England for the rebellion, lie deep in the springs of 
history. 

The strength of the political course which Mr. Burlingamehas inaugurated in 
the East, is that it does not regard these peoples merely as those with whom we 
are to open economic relations, — a policy in the interests of the sovereignty and 
of the freedom of trade, nor to begin a scheme of conquest in which all the 
elements of national life in the people, however imperfect, are to be crushed; 
but it is the institution of a policy in which these elements, in the unity and 
Bpirit of the people, are developed, and is the investiture of them with powers and 
rights which have a moral content, and consist with international law. 
17 



CHAPTER XIV. 

THE NATION AND THE INDIVIDUAL. 

The tendency of the political speculation of tlie old 
world, in Greek and Roman thouglit, was to regard the 
state as above and before the individual, so that the ex- 
istence of the latter was subordinate and secondary ; — 
the individual existed only for the state, and the state alone 
existed as an end in itself. There was the assumption of 
a necessary contradiction, and the solution was in the nega- 
tion of the individual. In Greece, the state acknowl- 
edged no moral, and allowed no formal Hmitation to its 
power. It took upon itself the immediate and exclusive 
conduct of life. It was to dispose of all, and not only to 
prescribe the avocations and regulate the affairs, but to 
direct even the thoughts and affections of men. It com- 
pelled the individual to engage in public pursuits and fill 
public offices and execute public trusts in the same manner 
as if subject to a military discipline. 

In contrast with this, the tendency of modern political 
speculation, in its abstract systems, has been to regard the 
individual as above and before the state, so that the ex- 
istence of the latter is subordinate and secondary ; — the 
state exists for the individual, and the individual alone 
exists as an end in himself. In these conventional schemes, 
the state is apprehended as only the form which the indi- 
vidual adopts in the pursuance of his private ends ; it is 
an artificial and temporary association, formed by a collec- 
tion of certain individuals ; it is established and maintained 
by a certain number of men, as private persons, and is 
subservient to their interests as individual or 'X)Loctiva 



THE NATION AND THE INDIVIDUAL. 259 

It IS secondary to the individual in the assumption that 
it IS only an artificial and temporary organization, and in 
the rejection of the unity and continuity involved in its 
necessary conception, and manifested in its organic life. 

In the course of history, there has been through the 
Christian centuries, in the reahzation of the being of the 
nation and the individual, the evolution of no antagonism, 

but there has been the manifestation of their necessarv 

«/ 

foundation and unity. 

Firstly, The nation and the individual are existent in 
the conditions of history, each as a necessary and integral 
element, in the normal development of the other. The 
nation is no abstraction. It is not a formal and external 
order apart from the people. It is organic, and in its 
necessary process as a moral organism it presumes in the 
individual the realization of freedom. In this, it is consti- 
tuted in its freedom. There is in this, instead of a source of 
variance, the postulate of its moral strength and its spirit. 

The individual, conversely, has his normal development 
in the nation ; it is formed in the institution of a moral 
order. This has been the course of history. The transi- 
tion from the unformed life of man, the barbarous con- 
dition, has been in the realization of the truly human, 
•.hat is, the normal and the moral condition, and this has been 
formed in the relations of the nation. The isolation of man 
is the representation, not only of an unreal, but an un- 
developed existence, and the institution of the normal rela- 
tions of men, that is, the organization of society, is in the 
nation. There has been thus for the individual apart fr-om 
the nation, no realized freedom. The nation has been 
the precedent of the realization of fr-eedom. 

Secondly, The nation and the individual in their rela- 
tion, exist each in a real and integral moral life and each 
as an end. The necessary conception of personahty for- 
'">ids that it should exist only as a means to an end, and 
i.^ realization in the nation and in the individual forbids 



260 THE NATION. 

that either should be apprehended as merel}/- secondary 
and subordinate. The nation, as a moral personaHty, has 
its law of being in itself, and its own vocation and its own 
end in history ; the individual in his own personality has 
therein also his own law of being, and his own vocation 
and end.^ 

The personality of the individual has not its origin nor 
its foundation in the nation ; the personahty of the nation 
has not its origin nor its foundation in the individual, but 
each has its origin and foundation immediately in God, 
and its vocation is only from Him. There is therefore no 
necessary antagonism, but in the law of their being an 
inner unity. There can be, therefore,- in their normal de- 
velopment no real conflict, and there can be no apparent 
or external conflict which does not involve in the one or 
the other the precedent contradiction of its own nature, 
and of the law of its own action, as determined in per- 
sonality. The actual conflict of either with the other, is in 
its precedent a conflict with itself. That there should be 
the possibility of an apparent or an external conflict, hes in 
the fact that through the power of sin, and through the 
ignorance and the weakness of men, the course of each is 
agitated and disturbed, and the realization of its being must 
be through many crises ; and in the fact also that the exist- 
ence of each in itself is a development in the moral con- 
ditions of history and of life ; but in the realization of the 
being of each, the possibility of this antagonism is dimin- 
ished, elements of external opposition are eliminated, and 
all that separates or occasions variance is being constantly 
excluded in the course of the development itself. 

1 There is the representation of the individual personality in the conscioa» 
ness, in the dramatist: — 

"I am a nobler substance than the stars: 
Or are they better because they are bigger? 
I have a will and faculties of choice, and power 
To do or not to do ; and reason why 
I do or not do this ; the stars have none. 
They know not why they shine more than this taper, 
Nor how they work, nor what? " 



THE NATION AND THE INDIVIDUAL. 261 

The organism of society is thus construed as an ethical 
organism, that is, an organic whole in which that which 
exists in it is both a part and a whole, — a part in rela- 
tion to an existing whole, and yet each a whole in itself.^ 
In the Greek representation, Aristotle justly places the 
nation in relation to the individual as the whole to the 
parts, and this relation exists for each individual compre- 
hended in it ; but the defect in the Greek thought is in not 
regardino; the individual as a whole and an end in him- 
self, and also in apprehending him as immediately related 
only to the state, and therefore as secondary and subordi- 
nate. This was the fault of the Greek thought ; it had not 
the revelation of the divine origin of man in the image of 
God, which has been from the beginning of history the 
ground of the positive Christian development. 

Thirdly, The nation is withdrawn fr^om the individual 
by a vocation, and the individual is wifhdrawn from the 
nation by a vocation ; but this instead of being the premise 
of an inconsistence, because the frilfiUment of the relation 
of each is in the reaKzation of personaKty, and in the will 
of God from whom it proceeds, is the condition of an inner 
and a necessary unity, as this unity has its subsistence in 
God. There is in this apprehension of the moral order 
existent in the vocation of the nation and the individual, 
the presentation of no abstract ideal, but it is the very 
ground of the unity and progress and sohdarity of society. 

The nation has its own vocation which it is to appre- 
hend and to realize in history ; it has not its origin in the 
volition of the individual, nor its end in the object of the 

1 " The nation must apprehend its moral aim not exclusively as the universal 
but as this in inseparable unity with the individual. Every individual must be 
tn absolute end also to the state. The individuality of none can be engrossed 
by society as an whole to perish in it, as if crushed through the grinding of the 
wheels of the state machine, for the sake of the common good." — Rothe, The- 
oloffische EihiJc, vol. iii. sec. 2, p. 903. 

" It has often been said that the well-being of its citizens is the end of the 
Btate ; this is certainly true : if it is not well with them, if their subjective aim 
is not satisfied, if the state as such is not the means for this satisfaction, thes 
the state stands on lame legs." — Hegei, Philosqphie des Rechts, ^ 321. 



262 THE NATION. 

individual, since as a moral person, it lias its origin n 
the divine will, and its end in the moral order which is set 
before it. There is thus manifest in its progress, a pur- 
pose in which it is borne toward the divine end in history. 
There is an aim which in its completeness in history, 
transcends necessarily the existence of the individual. 
There is a continuous spirit which is apparent in the suc- 
ceeding moments of its existence, and these are not merely 
the changes in a physical sequence, but in the develop- 
ment of a moral being. 

The individual is to work in his own vocation, and this 
consists with a moral order. This vocation, in its external 
phases, is incident to the realization of personality. The 
nation cannot determine the vocation of the individual, 
though in its moral order it is to maintain its sphere. It 
can assume nothing which devolves upon the determina- 
tion of the individual, but while existent with it in the 
relations of personality, it is external to it. The individual 
cannot transfer to the nation that which is involved in his 
vocation. Since it is in the realization of personality, 
there can be no transferal of it, but the individual is to 
work in it, and to work it out. The individual has neces- 
sarily to work in his own purpose, and after the idea given 
in the type of his own individuality. He can only appre- 
hend that which is his own, and an end which was alien to 
his being would be for him an abstraction, or would have 
necessarily to be rejected as an evil. It is thus alone, 
in conformance to his vocation, that he can work with a 
conscious spirit and freedom. 

Personality is inalienable. The rights of the spirit alone 
are inalienable rights. They are the rights of the spirit 
in itself, and are not as those which can be instituted 
through positive law in the external sphere. They are 
rights which are not won by force of arms. They are 
not to be numbered in the conquests of earth. . The inner 
spirit is beyond the assault of force ; its life is not touched 



THE NATION AND THE INDIVIDUAL. 268 

and its strengtli does not yield to mortal wounds. A 
man may alienate an outward thing, but personality lie 
cannot alienate. Its alienation would presume its nega- 
tion, the very abdication of the will. The surrender thus 
of the individual will and the conscience to that which 
is external, as to a priest, and the faith which calls one on 
earth a master, is the degradation of personality, and its 
consequence is superstition and slavery .^ Since person- 
ality has its origin in God, its spiritual and inner life is 
immediately with God. Its course is in the hght in which 
no shadow falls, as it is unmeasured by time ; it is the path 
which the vulture's eye has not traced, and is as " the 
flight of one alone to the Only One." " Over the soul," 
says Luther, " God can and will allow no one to rule but 
himself." The authority of the state cannot control the 
inner life, it can judge none for opinion's sake, it can by 
no enactment direct the course of the spirit ; it is not to 
invade the conscience and thought, it is not to reomlate the 
dispositions of men ; it cannot determine their love or 
hate or thoughts. These are withdrawn from the state, 
and over them the state neither has the power, nor is it 
called upon to rule. As the freedom of the inner spirit 
is beyond external power, the rights of the spirit cannot 
therefore embody themselves in the formal sphere of posi- 
tive rights, but the nation is to guard them from all attempt 
at invasion from the external sphere, and to forbid every 
attempt to bring force to bear upon them, and is to secure 
and maintain the freedom of conscience and of thought, 
the freedom of worship and of science. 

Fourthly, The nation and the individual exist in an 
organic and moral relation, in which the normal develop- 
ment of each has as its condition the development of the 
other, and their unity is formed after the law of a moral 
unity. The development of the individual has instead of 

1 Hegel speaks of personality as "die hochste zugescharfste spitze." — Logih 
bk. iii. p. 349. Rothe says, " Personlichkeit ist die rechste, cona''<^teste, und in 
*ensiviste Bestimmtheit. " —T/ieo^iscAe EtMk\ vol. i. p. 66. 



264: THE NATION. 

its restriction, its necessary condition in" the nation. It 
has its postulate in no merely external order, and no for- 
mal complex of laws and systems, but tliere is in these 
its limitation. As it is formed in relations, it subsists 
in a relation to the nation, as a moral person. The life 
that proceeds in conformance only to an external and 
formal postulate — the life that in morals is under rules, 
and in art under manners, and in religion under dogmas, 
and in politics under systems — is devoid of energy and of 
the strength and satisfaction of a living spirit. It is be- 
cause the nation is not merely an external and formal 
sequence or system, but an organic and a moral person, 
that it consists with the development' of the individual 
person. 

The nation indeed exists in its freedom in the realiza- 
tion of a moral order, but that order is correspondent with 
the real, the innermost being of the individual personality, 
and therefore the individual may strive to embody his 
moral determination in it, and may have in it the satisfac- 
tion of his aim. But it is in consistence with this that 
the nation may always require from the individual, in the 
external sphere, an external moral life, and the individual 
may demand from the state that no law determining the 
external sphere shall be in itself immoral, or destructive 
of the rectitude, or conviction of right of the individual, 
or impose obligations which are an offense to conscience.^ 

1 The conscience is not simply a certain faculty, as the memory and the judg- 
ment, to be occupied with the perception and contemplation of good and evil, 
as the memory, for instance, is occupied with the recollection of the past, or the 
judgment with the comparison of objects. It is not simply the capacity for 
the wider knowledge of good and evil, and the higher, — the better conscience 
is not the wider acquisition of knowledge of the fruit of the tree of good and 
evil, and the discernment of the quality' of its fruitage. This can account 
for none of the facts of conscience, as the}' are attested in the consciousness of 
the individual; or in the writings for instance of Shakespeare and the older 
dramatists, in whom there is the most profound analysis of these facts ; or in 
the history of the race ; or in the witness of its great moral teachers. Ther« 
is in the realization of personality the conquest of evil and the separation fron, 
it The conscience presumes the communion of a person with a person ; it 
s represented thus as the inner voice, the eternal word which speaks to tht 
«pirit of man. 



THE NATION AND THE INDIVIDUAL. 265 

It is a duty to obey, but if the law to wbicli obedience is 
enjoined is in violation of the law of conscience, its rejection 
is a moral necessity. The individual may not in his ac- 
tion controvert his own conscience, as if for instance the 
state demanded his participation in some superstitious rite. 
But the state in every law and regulation of this sort, not 
only passes beyond its province, but the requisition of such 
acts is in violation of the law of its own being, as there can 
be no actual conflict of the individual and the nation but 
it is preceded by, and in itself involves, the variance of 
the one or the other with the law of its being. The re- 
jection of an immoral requisition may be therefore the con- 
formance to the higher law, the law of the being of the 
nation, but the rejection can only be justified in the indi- 
vidual, when it is followed by an effort and endeavor to 
repeal the law or regulation itself. 

The development of either the individual or the nation 
is in so far the condition of the higher development of the 
other, that the ages of their higher historical development 
have been coincident. They become associated in the 
spirit of the people. In the life of the nation, the very 
names of its members, in whom there has been the higher 
personality, become the synonym of its strength. Thus 
Dante becomes identified with Italy, and his name becomes 
^ sign of its national hope ; and Shakespeare with England, 
and Luther with 'Germany ; and in the struggles of the 
pebples for national life, their names become the symbols 
of national unity and national spirit. 

It is thus, also, that in the decay of the nation there is 
the correspondent degradation of the individual. This has 
its historical evidence in many forms. As the strength of 
the organic life of the nation is impaired, and its spirit is 

There is in the conception of personality, the significance in ethics of the 
golden rule, as a comprehensive law, — " do unto others as ye would that they 
should do unto you." This alone removes it from a mere negation ; the law of 
action is in no abstract idea of justice, nor ir love of itself considered, but the 
vontent of the law is in personality. 



266 THE NATION. 

broken, there is an increase in the assuniption and dom- 
ination of sects and parties, and the individual person- 
ahtj is weakened as the people become entangled and 
trammeled and ridden by them. The tyranny of opinion 
is stronger in the decadence of law and freedom. The 
moral energy and vigor of the people is sapped. The 
armies are no longer armies of men, but masses moving 
mechanically, as if impelled by some power external to 
themselves. They become converted into the passive 
instruments of an imperial force. 

It is in the law of a moral unity — the unity in which 
the realization of personality subsists — that the foundation 
of the unity and continuity of the nation is laid. It is the 
law which has its highest manifestation in sacrifice. It 
consists with the consciousness of the vocation of the 
nation, as the fulfillment of humanity in God. A his- 
torian of the state, as he presents, in the exclusion of all 
theories, the facts of history, says,^ " The glory and honor 
of the nation have always elevated the hearts of its chil- 
dren, and inspired them with sacrifice. For the being, 
the freedom, and the rights of the nation, the noblest and 
the worthiest have always offered their lives and their all. 
The whole great thought of the Fatherland, and the love 
of its children to it, would be inconceivable, if this moral 
personality did not belong to the nation." 

But as there is in the moral unity which is manifest in 
sacrifice, the recognition of the moral being of the natioh, 
there is in it also, the preclusion of the postulate and induc- 
tion of individualism. It can find no reconciliation with 
the assumption that the nation exists only for the institu- 
tion and protection of private interests, and the ftirther- 
ance of private ends. The unity which subsists with the 
sacrifice of the individual for the nation, as it is formed ir 
the manifestation of the law of the highest moral unity iii 
the life of humanity, can proceed only in the conception o* 

1 Blvintschli's AUgemeines StatsrechtSj vol. i. p. 40. 



THE NATION AND THE INDIVIDUAL. 267 

the being of tlie nation as a moral person. It cannot 
consist with a mere individualism in its principle or result ; 
and it is abhorrent that the sacrifice of those who had the 
higher moral spirit — the worthier going forth in their 
prime with joy and trust — should be counted only to 
serve the private and special ends of the individual, and 
to secure or promote their pleasure or possession ; and 
when the names and sacrifice of these are kept in the 
memory of the people, it is abhorrent that any should 
regard the nation as existent only to subserve their private 
and special interests and ends. But this is the necessary 
assumption of individualism. 

It is because there is an inner moral unity in the nation 
that the higher realization of personality consists with it. 
The ideal state of Plato regarded the freedom and person- 
ality of the individual with dread, and found no place for 
it ; but in the reahzation of the nation it becomes the 
element of its strength. It is as the temple whose build- 
ing is of Kving stones. The very substance of the nation 
is in identity with the realization of personality ; but this 
can be conceived only as the nation is a moral person. It 
is thus in its history, that those in whom there is the 
higher realization of personality testify in themselves to 
the higher realization of the nation. The will that strives 
for the prevalence of righteousness on the earth, in obedi- 
ence to the divine Will ; the spirit that communes with the 
inner voice to follow the divine Word ; — as there is in 
these the source of the personality and freedom of man. 
so there has been in these, also, the building of the nation. 
The historical forces, with which no others may be com- 
pared, in their influence upon the people, have been the 
Puritan and the Quaker. The strength of the one was in 
the confession of an invisible presence, a righteous and 
eternal Will which would establish righteousness on the 
earth, and thence arose the conviction of a direct persona] 
responsibility which could be tempted by qo externa! 



268 THE NATION. 

splendor, and could be shaken by no external agitation, 
and could not be evaded or transferred ; tbe strength of 
the other was the witness in the human spirit to an eter- 
nal "Word, — an inner voice which spoke to each alone, 
while yet it spoke to every man; a light which each 
was to follow, which yet was the light of the world ; and 
all other voices were silent before this, and the solitary 
path whither it led was more sacred than the worn ways 
of cathedral aisles. There was in this the foundation of 
the personality of each, and the secret of the power in 
which they have wrought upon the nation. 

Fifthly, The conception which defines either the nation 
or the individual as subordinate and secondary, is in its 
error the postulate of an inevitable antagonism. If either 
be held not as an end in itself, but only as a means having 
the other for an end, there can be no principle of unity 
and no form of reconciliation ; there can only result 
the negation of the one by the other. Society, then, in its 
irregular course, moving from one contradiction to another, 
sweeps through the extremes of socialism and individual- 
ism. It alternates between a communism, in which there 
is the destruction of the individual, and an imperialism, in 
which as in anarchy there is the exaltation of the individ- 
ual. There is in each of these phases of discordant action, 
the contradiction to the nation as an ethical organism, — 
the subversion of the organic and moral being of the peo- 
ple. The result in each is the decay of public spirit, 
which is the reflection of the moral aim of the people, and 
the loss of even the conception of public duties. Thus in 
an individualism, — where society is apprehended as hav- 
ing its origin in the volition of the individual, and its 
continuance subject to his option, and government is 
only the temporary agency of certain individuals, its right 
only the combination of private rights, its will only the 
momentary choice of private persons, its end only the fur- 
therance of private ends ; and in socialism, — -^vhere the 



TFTE NATION AND THE INDIVIDUAL. 269 

individual is apprehended as subordinate, and is related 
to the government only as its subject, and in himself and 
his services is held as if owned by the state, — there is 
in the principle and result the comprehension only of 
private capacities and private obligations, and in each 
there is no foundation for public duties and public rights. 
Their conception is apparently preserved in the latter as- 
sumption, but in it, the necessary rights of the state itself 
can only be apprehended as private rights, and in relation 
to the individual the state is only a private person. 

There is wanting also in the artificial conception of the 
state, that is, its conception as only a formal sequence or 
order, the necessary condition of the individual develop- 
ment. It is necessarily restrictive of the individual. This 
has been conceded in the induction from the theory itself. 
Those who have assumed the origin of the state in a com- 
pact, have regarded its existence as the necessary and 
formal limitation of the individual, and therefore it has 
been assumed that the individual surrendered a part of 
his actual freedom and actual rights on his entrance into 
it, and in so far suffered the deprivation of them. 

The organization of a merely formal association, as the 
organization of a sect or a party, is necessarily restrictive 
:f the individual; but it is not thus in an organization 
foi-med in an organic life, and as freedom has no formal 
ground, it cannot subsist in a merely formal association, 
and it is only as the nation is an organic and moral per- 
son that freedom is realized in it, and that the freedom of 
the individual may be wrought in and with it, in its normal 
development.^ 

Sixthly, The nation is to institute and maintain for the 
individual the sphere of an individual development in its 
external conditions. It is to enable each to bring aU that 
is in the type of his indi^dduality to its fresh and fr'ee ex- 
pression. There is to be room for eacn that he may d(r 

1 See Bluntschli's Geschichte des StaaUrechts, etc, p. 622. 



270 THE NATION. 

all that is in him to do, so that if there be failure in any 
attainment it is in the homely phrase, because it was not 
in him. The state by no enactment is to thwart or re- 
strict the working out of the individuality of each in its 
own type. It is not to hamper or debar any in the crea • 
tive use of the talents given to him, but in its external 
conditions is to guard them against let or hindrance. The 
individuahty of each is to be so left, that each may work 
after his own idea, as all that is alien to this must neces- 
sarily be rejected as abstract or evil. 

This is the condition of the moral life, and its real 
achievement. In this alone, as the individual works freely 
and steadily in it, is the only sureness of strength and 
repose of character. It is in this that the manifold riches 
of life, more varied and opulent than in the process of 
the physical world, are wrought. There is thus to be open 
to each, the expression of his own conceit, his own dispo- 
sition of things, his own fancy alike in the work and play 
of life. There is to be also the freedom of work, and free- 
dom of thought in every form, in theology, in politics, in 
science, and freedom of study and research, and freedom 
of communication and association, and freedom of cooper- 
ation in industry and economy. There is to be freedom 
of action, the choice of a home, the choice of a vocation, 
the choice of a wife. This freedom in every field is the 
condition of moral strength. In it the bondage of the 
animal is overcome, and " the ape and tiger die." 

The higher individuahty is always advancing toward the 
universal, as universality is a necessary element in person- 
ahty. Thus the mere eccentricity of style, the singularity 
of manner or oddity of action which do not belong to 
individuality, tend to disappear, as all mere mannerism 
ceases in the work of the greater artist. 

In the necessary conception of a moral organism, the 
\iation is to regard the individual as in himself a whole 
and its aim is to be, that his powers shall have a devel« 



THE NATION ANI? THE INDIVIDUAL. 271 

opment in a consistent whole. Since the nation 3ompre- 
hends in its aim the universal, not as an abstraction, but 
in the realization of personality, it diverges from its own 
aim, and impairs its power in every course which is re- 
strictive of the iadividual personality. Its attempt imme- 
diately to control and direct it, is an incursion always 
marked by the devastation of human energy. In its en- 
croachment it can only mar the work and baffle the pur- 
pose of men. It can only make men by it the agents of 
imperial dominion and the subjects of priestly supersti- 
tion, the tools of sects and the trade and stock of parties, 
not the members of a free nation. It is the cour le of 
principahties and powers, not of the government of free 
men. 

Seventhly, The nation is constituted as a power in the 
education of the individual. The individual first becomes 
a person in the nation. It acts as a power in the realiza- 
tion of personality. It works as an organic energy. The 
eleme]:its of a moral order in it are formative of charac- 
ter. In the nation the individual apprehends the authority 
of law in an order which is over self will, and he has 
before him an aim which transcends a selfish end, and is 
lifted into the consciousness of a life which has a universal 
end. In the nation there is wrought into the life of the 
individual the apprehension of a purpose formed not in 
momentary and transient desire, but a purpose transmitted 
through the succeeding generations with its sacred memo- 
ries and mysterious sympathies and quickening hopes. 
The nation thus becomes for the individual an heritage, 
and not his alone, but to be held for those who shall follow 
him. The wealth of its historical associations, and the 
grandeur of its historical epochs, are its gifts. The majes- 
ty of its law, and the authority of its government, and 
its conquering power are aroinid him; its acquisition is 
his vantage-ground ; its domain is his home ; its order is 
his working field ; its rights are the armor it has forge I 



272 THE NATION. 

for him ; its achievements are the nobler heights he treads • 
its freedom is the ampler air he breathes. 

The evil of things is in the degradation of personaKty, 
and in that men sink into the undistinguished mass. But 
the nation in its being as a moral person penetrates the 
whole, and transfuses it with its spirit. In its relationships 
it becomes the realization in humanity of the brotherhood 
of men; and in its continuity, it takes hold upon that 
which is eternal, and man is lifted into the clearer con- 
sciousness of the being and the eternal " I am," the foun- 
dation of all. But no theory of interests, and no scheme 
of economy, and no sect in its exclusion, and no imperial- 
ism in its dominion, have power for this, and it belongg 
not to the nation as these, but to the nation because it is 
other than these. 

There is in Stahl a suggestive and beautiful illustration 
of the representation of the state in the fundamental 
thought of Plato and Rousseau. The true postulate and 
the real object, it is admitted, is the perfect unity and 
relationship of men in a moral kingdom, and with this 
the perfect freedom and conscious self-determination of 
each ; it is this that has inspired the loftiest conceptions of 
the state. The fundamental thought of Plato is the perfect 
unity of the state, but as involving the surrender of the 
individual will ; and yet it is this which casts a marvelous 
light upon the pages of the Republic, — the feeling that 
the true condition of humanity is only realized when the 
individual wholly and without reserve loses himself in the 
unity and the harmony of a higher moral whole : the fun- 
damental thought of Rousseau is the perfect freedom of the 
individual, and he asserts as the problem a condition m 
pvhich every man remains perfectly free, so that when he 
">beys the state he obeys only himself; and this statement 
>f the problem is the deep and eternal truth, but it is only 
;o be solved in the conclusion, that the will of the state 
And the will of the individual hold substantially the same 
determination, and that each hold a moral determination; 



THE NATION AND THE INDIVIDUAL. 27S 

There is a faith in the destination of the state which 
makes the highest moral endeavor no vague and empty- 
dream. There is a faith which while it may call for the 
willing sacrifice of the individual, yet makes it not all in 
vain ; and they that in the strength of that faith pass 
though the suffering and sacrifice of prisons and of battle- 
fields, find in the realization of the life of the nation that 
the words are justified, " He that loseth his Hfe shall 
find it." 

Note. Mr. Mill says : " The tendency of all the changes taking place in the 
world, is to strengthen society, and to diminish the power of the individual; 
formerly men lived in what might be called different worlds, different ranks, 
trades, etc. at present in the same. They now read the same things, see the same 
things, have the same rights and liberties, and the same means of asserting them. 
The assimilation is still proceeding ; all the political changes of the age promote 
it since they all tend to raise the low and lower the high." — On Liberty, pp. 8, 43. 
This proposition that the political changes taking place in the world, — the politi- 
cal changes tending to increase the power of society, operate to diminish the 
power of the individual, is the necessary induction of Mr. Mill's conception of 
liberty; but it is presented with no historical evidence. These changes, it is 
admitted, are towards the realization of a stronger life in the nation, that is, 
the organization of society; but the ages of national development have always 
been characterized by a higher individual development. These changes have 
been the greater in the United States, in German}-, in Russia, in Italy, in Spain; 
and the most superficial survey of these countries makes it apparent that the 
greater unity and power in the realization of the being of the nation has been 
coincident with a higher freedom — a higher realization of the individual per- 
sonality. A wider illustration might be drawn from the history of preceding 
centuries, as for instance, the age of the higher national development of Eng- 
land was the age also of Shakespeare, of Raleigh, of Bacon, of Milton. 

To read the same books, to hear the same truths, to see the same ideals 
in art, to become conversant with the same facts in history, does not diminish 
individuality; the same books does not mean books of sameness. That all 
men, for instance, read the Bible, or Homer, or Dante, or Shakespeare, or in the 
facility of travel, have opened before them the whole world of art, does not 
diminish individuality. If these truths, or books, or works of art, were limited 
by an exclusive patent, it would not aid in the development of individuality. 
In so far as any production in literature or art has a universal element, the per- 
sonality of each is elevated, instead of being depressed and diminished by it. 
It would be inferred that individuality is apprehended in the preceding citation 
as only a formal variety or contrast. The artificial distinction is the description 
of a personage, and not of personality. 

When Mr. Mill assumes a diminution of individuality as the result of the 
institution 4f the same rights, the fallacy is more apparent, but is most danger- 
ous, foi these rights have their consistent f-^undation ^n no artificial representation 
of the state, but only as thev ?ce 'ecognized as the rights of personality — the 
18 



274 ' THE NATION. 

rights of mAu. And individuality is not founded in, nor developed by, artificiai 
distinctions and grades in rank, or caste, or by various trades, or by the isolation 
of provinces; these impair it as it is compressel in their external moulds. The 
force of custom and circumstance weighs upon the spirit, as it is cramped and 
bent to run in these grooves. The country may be called the more free which 
has roads open through it; but it is not the more free when one is always re- 
quired to take a road through the valley and one always to ride on the hills. The 
stronger individuality comes to hold these distinctions which are cited, only as 
an accident. And the formal distinctions of rights and liberties, as it severs 
them from their only true foundation, instead of elevating crushes the individual- 
ity of men and fetters their free action; for the further statement, it is a law of 
unvarying force, that when in the nation the low becomes high, it is not by the 
degradation of the high, but in the elevation of the whole. 

Mr. Spencer has a representation of the state, in which education and the 
institution of public schools by the state is regarded as an infringement upon the 
sphere and rights of the individual ; and recognizes among the rights of the 
individual " the right to ignore the state." — Sodal Statics, p. 229. The mean- 
ing of this term is made further apparent. Mr. Spencer says : " Government 
being simply an agent, employed in common by a number of individuals to se- 
cure to them certain advantages, the very nature of the connection implies that 
it is for each to say whether he will employ such an agent or not. If any one 
determines to ignore this mutual-safety confederation, nothing can be said except 
that he loses all claim to its good offices and exposes himself to the danger of 
maltreatment." — Ibid, p. 229. It may be well to have the induction of 
an out and out individualism, which holds the state only as a " mutual-safety 
confederation," — a joint-stock insurance office, and regards government as a 
private "agency," and recognizes for the individual, "the right to ignore 
the state." Then when not only one but two or a crowd assert their rights and 
Ignore the state, and in this condition rob or murder, or in any sort maltreat each 
other, the state may not act in reference to it, since it is only the agency in the 
employ of other individuals. If then, — if the illustration may be allowed, — Mr. 
Spencer assert and exercise his rights, and while maintaining his right to ignore 
the state is robbed by some vagrant, of course he cannot recover through 
the aid of the government the property which he has lost; or the vagrant, not 
having determined himself to ignore the state, may bring the power of the gov- 
ernment, being the agency in his emploj'', to secure him in his actual possession, 
— it of course refusing to admit the claim of one who had ignored the state. 
Mr. Spencer further describes this right as the attitude of " a citizen in a condi- 
tion of voluntary outlawry." — Ibid, p. 229. It is difficult to imagine " a 
citizen in a condition of voluntary outlawry ; " and one fails to recall the po- 
litical position of any whom it depicts, unless it be not the least sig- 
nificant among the political characters in Shakespeare, — Sir John Falstaff. 
The satisfaction with which Sir John would receive this presentation of the 
state, as defining his position, can readily be imagined, and it is not surprising, 
in the unshrinking conclusions of the writer, to fiind on the following page a 
repetition of Sir John's inveterate opinion, — " The state employs evil weapons, 
soldiers, policemen, jailers, to subjugate evil, and is alike contaminated by the 
objects with which it deals and the means by which it works." — Ibid, p. 230 
The difi'erence between evil doers and deeds, and this use of so-called 
evil weapons, is not defined; and a people who have reason will not regard th. 
•oldiers of the nation as justly described as " evil weapons," nor believe tha* 



THE NATION AND THE INDIVIDUAL. 275 

it was contaminated by them. These statements need no discussion, and if 
there be an illustration of a barren logic applied to the state, or in Milton'i 
phrase, " ideas that effect nothing," it is in these positions. Their significance 
is mainly in their evidence that at the outset a mere individualism loses the 
conception of a country, and the relation of the people to the land. They are 
the induction of empty formulas; and they do not touch the solid ground, nor 
comprehend any fact in. the life of an historical nation. And it is the peril 
of a people if these theories mould its thought ; the right to ignore the state 
becomes the justification of secession and rebellion and of every political crime, 
and these principles in the thoughts of men are the dissolahon of society and 
destruction of the nation. 



CHAPTER XV. 

THE NATION AND THE FAMILY. 

The nation and tlie family exist in a necessary and 
moral correlation. They do not exist m identity ; the 
family has its own nnity and order, and the nation has 
other powers and obligations, so that when society is con- 
stituted after a patriarchal type, and does not pass beyond 
that, there is no political life, nor the institution of an his- 
torical power. 

The family is the natural and the normal condition of 
human existence. It is not the unit of society, that is, the 
ultimate and integral element, but it is the unitary form of 
society. In its beginning it is rude and imperfect in its 
structure, but with the progress of society it passes on to 
a higher development and a more perfect conformance 
to its type in the true and monogamic organization. 

The family is of divine institution, and is constituted in 
and with the nation in the moral order of the world. It 
is a relationship, and there is thus in its growth the educa- 
tion of the individual and the formation of character. 

It is as a moral order, and as constituted in moral rela- 
tions, that the family has its origin and foundation, not in 
impulse and desire and transient choice ; but it presumes 
in its beginning and its course the assertion and continuity 
of a moral determination, and therefore impulse and tran- 
sient choice must be brought into subjection to it. It is as 
a moral order that it has its own law, and is to be formed 
after its own necessary conception. It is as a moral order 
that it is related to the whole order and organization of 
society, and therefore its violation affects not only the 
individual but the nation. 



THE NATION AND THE FAMILY. 277 

The family, in its divine origin and in its formation in 
the relations of a moral order, and in its consistence with 
the determination of personality, is a holy estate. It has 
its beginning in the "I will " of those who enter it; and 
it cannot therefore consist with the transient desire, nor 
the momentary act of the will, and these are excluded 
by its law, and the continuous character of the moral 
determination of the will is apprehended in it. It is in 
• conformance to the relations of a moral order ; and as 
these relations, while they consist with the moral deter- 
mination, had not their origin in the transient voHtion of 
man, they cannot be made subject to it. Since man did 
not create this order, in the possibihty of sin, he may 
interrupt or violate it, but he cannot change it. It is not 
therefore existent only in the momentary choice of sep- 
arate parties, to be continued or dissolved, as the inclina- 
tion of either or both may dictate. This would consist 
only with an arbitrary and unfree, and therefore an im- 
moral, constitution of society. 

The family is organic ; it has not its origin in an enact- 
ment or a contract ; it is not a construction in conformance 
to a speculative theory or scheme ; it is not a formal rela- 
tion, but an organic and moral relation ; it is not a formal 
order, but the natural and normal order. This precludes 
its assumption by a certain section or a certain class as an 
exclusive or a proprietary right. This precludes also the 
representation of the origin of the family in a contract. 
The contract also could not become the ground of the 
unity involved in the family, since those who form a con- 
tract remain separate parties to it. 

The necessary analogy of the family and the nation 
illustrates their necessary structure, and there is in it the 
avoidance of the error of many -oolitical abstractions and 
the infidelity of many poHtical dogmas. The representa- 
tion of the nation as only a forma >rganization, or as an 
external order, or as the exclusive possession of a few, or 



278 THE NATION. 

as formed in a contract, or as the scheme and expedient ol 
legislators, is inconsistent with the necessary analogy of the 
family and the nation. 

In the organization of society the family is precedent to 
the nation, while in its continuance it is subordinate tc it. 
It is through its precedence and through its necessary con- 
stitution in organic and moral relation?, that it appears in 
an historical relation with ,the beginning of the nation, 
and subsists in a continuous relation with it. The nation 
has not its origin in the family, but it exists in a necessary 
correlation with it, and in the development of each this 
relation must always have a deeper recognition. The 
first indications thus of the organization of society, are in 
the family, the life of the patriarchs and the patricians ; 
and the notions of a formal and conventional origin of 
society disappear in the study of the historical beginning 
of things. 

There has been in no age the record of the foundation 
of the nation, but there has been coincident with it the 
witness to the sacredness of the family. In the ancient 
world, or rather in the beginnings of the historic world, 
this conception is central and prevails in its art and liter- 
ature and laws. The book of the Genesis is mainly filled 
with the record of the foundation of the family, and the 
incident of its history ; and with its close the transition is 
made to the nation. The Iliad, in which there is the 
deepest reflection of the spirit of archaic life, is the story 
of a war for the vindication of the purity of the marriage 
bond, and its heroes are those who go to battle to vindicate 
the sacredness of the family ; the ^neid is the story of 
filial duty and reverence, and in each the spirit of th« 
family blends with the nation, and in each there is the 
unfolding of a national life. In Judaea the family, in. its 
primitive law, is declared to be holy, it is to be maintained 
as an institute of the nation in its order, and its violation 
is to be punished as a crime. In Greece, its earliest insti- 



^HE NATION AND THE FAMILY. ^579 

hitions, the pliratriae and gentes, are the evidence of the 
power and the dignity of the family. In Rome the rever- 
ence for the family is reflected in all the observances of 
its religion, moulding all its institutions and its laws. The 
law has a universal attestation, that when the life of the 
nation has been the deeper, and its moral aim more clearly 
apprehended in the consciousness of men, there has been 
a clearer recognition of the sacredness of the family, 
and conversely when the family has been regarded as 
formed in a contractual law, or a momentary obligation, 
it has impaired the power and spirit of the nation. In 
its higher development, the people have apprehended in 
the nation the glory in the work of its ancestors, and in its 
future the enduring heritage of its children. It is thus 
that the symbols of the family have been inwrought with 
those of the nation, and its services have been recounted 
m the inscription of ancestral honors. Its glory has been 
in its devotion to the nation, and it has kept the names of 
those whom it has given for it in its holiest traditions. 
It is thus that reverence for the fathers and their work is 
involved with the continuity of the nation, and therefore 
the law which is so deep a revelation of the conditions of 
national life, " Thou shalt honour thy father and thy 
mother," is made the premise of the permanent possession 
of the land by the people. 

It is thus that in the decadence of national life there is 
a loss of the consciousness of the sacredness of the fam- 
ily, and a consequent increase in the violation of its law. 
It is the degradation of the family, and the lower appre- 
hension of its obligations, that is represented alike by all 
her annalists and her satirists, as the cause and circum- 
stance of the ruin of Rome. When the sacredness of the 
-amily is not regarded, when it is no longer apprehended 
IS a moral order, but as devised by men and shaped onlj 
oy a law of expediency, and subject to caprice, the life 
of society is corrupted in its source? . 



280 THE NATION. 

Thus also the system of slavery, in its antagonism to 
the nation, was in conflict with the law of the family 
and among the slaves in certain commonwealths, family life 
vvas unknown, and many on emerging from slavery had no 
2amily name, but only the designation given to identify the 
individual.^ 

In the family a child is educated for the nation. It is 
a relation which has a moral content, and character is 
moulded in it ; and the individual grows into the con- 
sciousness of a whole, in which he is borne beyond his 
own separate and selfish end. In the advance of childhood 
there is also the consciousness of a continuous relation, 
and in its obedience there is the education for government 
and for freedom. It has been truly said, that government 
so depends on the life of home, that for a homeless com- 
munity, anarchy or despotism would be the alternative .^ 

The conception which prevails of the nation shapes the 
family also. When it has been regarded only as a formal 
relation, and its origin referred to a contract, the same law 
has been assumed as defining the family ; when it has been 
apprehended in a mere individualism, the conception of the 
family as organic and as a divine institution, has also per- 
ished, and in this formalism and individualism, there is not 
only the rejection of the organic and moral being of the 
family, but its necessary relation to the nation. 

The necessary relation of the nation to the family is the 
condition of the rights and obligations existent in that rela- 
tion. The nation is to guard and maintain the family, in 

1 Slavery, in its necessary antagonism to the organic being of society, de- 
stroyed the family before it sought to destroy the nation; and there is nothing in 
the reconstruction of society more important than the assertion of the sacrednesa 
of the family and the unity of the household. There might be the highest valua 
in a homestead act of some sort, but no legislation can maintain an accumula- 
tion of property without a deep assertion of the family, and with it, in the ordi- 
nary administration of civil rights, nothing can prevent that accumulation. 

2 Rousseau says, "The family is the primitive type of political society." 
" Prima societas in ipso conjugio est, proxima in liberis, deinde una domu 
x>mmunia omnia. Id autem est principiura urbis, et quasi Seminarium Rei 
pubiicai." — Cicero, Be Officiis, i. 17. 



^ssm^tam 



THE NATION AND THE FAMILY. 281 

conformance to its normal and moral conception, and to 
punish its violation, which is in a higher measure a crime 
against the whole. The nation fails in its office, in which 
it is clothed with power and authority for the realization of 
a moral order, if it regards with indifference, in any form, 
the infraction of that order. It is thus that it is in con- 
flict with a system of polygamy, which has in itself the 
elements only of an imperfect development of society, or 
elements at variance with the moral unity of the family, so 
that it becomes an impulse toward barbarism. It is thus, 
also, that it is to prescribe and regulate the forms and con- 
ditions of marriage, and to require that it be undertaken 
not slightly nor hastily, but with a definite form and the 
attestation of the obligations of the state, in and for its 
maintenance. It is thus to punish the violation of the law 
of the family, and is not to leave it to the wild justice 
which acts in private revenge, which is the defect of gov- 
ernment ; and it is not to omit adulteiy from the calendar 
of its crimes, nor to intermit the judgment of it as crime ; 
it is an abandonment of its trust if it fails in this. 

In its civil rights the family is to be sustained by the 
nation acting in and through the order of the common- 
wealth, and its inheritance in property, and the guardian- 
ship of its members left dependent, is to be observed by 
the nation, and if parents themselves are derelict in duty 
to their children and to society, even the right of parental 
control must be superseded by the parens patrioe?- But the 
maintenance of the family in its moral order is the imme- 

Mate obligation of the nation, and although it acts in and 
through the process of the commonwealth, yet its obliga- 
tion is not limited to the latter sphere, and while in cer- 
tain periods or phases It may act more effectually through 
it, yet in others the same method might imperil the order 

md being of the whole ; thus, if divorce is allowed it 

may devolve immediately on the nation to prescribe its 

^ 4 What R. 11. 



282 THE NATION. 

conditions. And as the family is in itself a moral order 
and has not merely a formal origin, the government of the 
state cannot simply by a formal act annul it, and the di- 
vorce it grants is not the ground of the dissolution of mar- 
riage, but the authoritative recognition of the fact that the 
bond of the family has been already dissolved by crime. 

The hope and the blessing of the family and the nation 
is one. Their foundations are not laid with human hands. 
The years do not erase them from the record of human 
lives.^ 

1 In Troilus and Cressida, Shakespeare has indicated the deep moral relation 
of the family and the nation, and its significance, in the story of Troy. The 
war had its origin in the violation of the purity of marriage life, and it was this 
which involved the city in destruction. The doom then which overtakes Troilus 
and Cressida is the reflex borne on through the years, and on to the close of the 
city, of the moral judgment upon Paris and Helen. There is an expression 
not only in the catastrophe, but through the whole drama, of the organic and 
moral relation of the family and the state, and it shapes the discourse and even 
lends its coloring to the imagery of the play. It is thus that its thought dwells 
upon the 

" Unity and married calm of states," 

and thus the deepest lessons of political wisdom are no digression, but are nat- 
urally connected with the conception and import of the play, and the tragedy in 
its close consists with the unity of the whole. This political significance alone 
justifies the drama from the criticism of Mr. Verplanck, which has the assent 
also of Mr. White, that '* th& efi'ect of the play is impotent and incongruous." 
Mr. Verplanck yet says the drama " displays all the riches and energy of the 
poet's mind when at its zenith;" and Mr. White places it "among the most 
thoughtful of all his plays." White's JEd., vol. ix. p. 10. One may then be 
reluctant to admit the conception which regards the conclusion as impotent and 
incongruous, and the political lessons as only detached discussions on politics, and 
the awful fate at the close as arbitrary and misplaced. But if, in the close of the 
history of Troy, there is to fall upon the life of its own members — on Troilus 
and Cressida, — with scarcely an immediate premonition, the shadow of the guilt 
which was the beginning of the war and the destruction of the city, then in 
the relation in which the family is involved with the nation in its whole course, 
and from which no individual member of it can be wholly exempt, there is the 
unity of the drama, and then the same doom is repeated in the close of Troy 
which impended over it in the beginning of the war, as if in that aloue the 
urden of the city was ended. 



CHAPTER XVI 

THE NATION AND THE COMMONWEALTH. 

The nation in its internal order and administration, is 
constituted in the commonwealth. The family is the 
primary form of human society, hut in the natural 
growth of society the family does not remain single ; it 
branches outward, forming other families, or in the course 
of time other families become connected with it. These 
have as separate families certain relations ; they are sub- 
ject to certain common necessities, they hold certain com- 
mon lands in occupancy, and with labor and its result in 
the satisfaction of necessities, there may come into use 
some mode of exchange in that which they have separately 
obtained. The return of labor is scant and irregular, and 
often is subject to the disposition of the stronger, but in 
this archaic life some uses, in forms however rude, prevail, 
in which interests are recognized, and although they may 
be shaped at the outset by the will of some patriarch, these 
uses obtain a certain force. It is the community which 
has been formed in the transition of the family, through 
common necessities, and the adoption of common uses 
and the accumulation of common interests. There is in 
this the beginning of the system of civil rights, and the 
building of the commonwealth.^ 

The commonwealth may be regarded thus in its formal 
organization as precedent to the nation. 

1 In defining the character and relation of the United States and a particulai 
Slate, the international and the civil state, — the nation and the commonwealth, 
this term is used in a strict and limited significance. Yet it is not arbitrary, 
and may claim both a literal and hisiorical justification; it is the style o! 
many of the earlier *nd larger communities, as the commonwealth of Massa- 
ch'^setts, the commonwealth of Virgrinia. the commonwealth of Pennsylvania 



284 THE NATION. 

In the process of society, the family exists in an organic, 
and the commonwealth in a formal relation to the nation. 

The distinction in the organization of society, of the 
commonwealth and the nation, has been recognized by the 
great masters in political science. Aristotle describes 
(1.) the family — oTkos, the house ; (2.) the common- 
wealth — K(6/x>7, the community; and (3.) the state—* 
fl-oAts, the political body ; the city state. The common- 
wealth, he says, is formed for mutual advantage, but the 
6tate is formed for a moral end.^ The conception is repre- 
sented by Hegel, with great clearness and completeness, 
and forms one of the most masterly subjects in his poli- 
tics. Hegel maintains the distinction through the whole 
structure of his work. He defines (1.) the family, — Die 
Familie; (2.) the commonwealth, Die Burgerliche Gesell- 
schaft, the civil state ; and (3.) the nation, Der Staat, the 
international state.^ 

The commonwealth is the civil order of society. It is 
a formal organization, and is based upon external and nec- 
essary relations, and its action is through a civil system 
for the security of the private rights of persons. 

1 Politics, bk. i. ch. 2. 

2 Philosophie des Eeehts, p. 66. Hegel defines tbe commonwealth as " an 
association of men as private individuals, and thus as existent in a formal rela- 
tion, — a relation formed through their wants, and in the civil constitution as a 
means for the security of persons and property, and in an external order for 
their special and common interests ; " he says, " the commonwealth as an ex- 
ternal order, in its realization recedes into and subsists in the state." — Ibid. 
p. 215. The commonwealth, he says, has three phases, the satisfaction of the 
individual through labor and exchange, or " the system of wants; " the security 
of liberty and property, or " the jural process; " and the care of special interests 
as a common interest, or " the police and corporation." Ibid. p. 248. He saya 
the commonwealth " is constantly apprehended and represented as the state, 
but the state is other than this, and its law is higher than this, it is the righteous- 
ness," etc. — Ibid. p. 69. The representation of the commonwealth. Die Burger* 
liehe Gesellschaft, in Hegel, may well be described by Rothe as meisterhaft. It 
is in no respect open to the criticism of R. von Mohl, that it is introduced simply 
in conformance to a threefold logical sequbdce. — Geschichte u Literateur de$ 
Staatsmssenschaften, vol. i. p. 82. The distinction is maintained with certain 
modifications by Rothe. — Theologische Ethik^ vol. ii. pp. 101-120. Bluntschh 

ejects the formal distmction of the civil corporation and the state, but th# 



THE NATION AND THE COMMONWEALTH. 285 

It is the society of men existing in jural relatiom. and in 
associations which are defined in jural forms. Its mem- 
bers exist in no organic unity and continuity, but in a 
formal relation, tlirough the existence of private interests 
in their individual or collective character. It embraces the 
administration of civil justice in its formal order. 

The commonwealth, since it is formed, in the necessary 
relations of life, has the law of its action in necessity. It 
is thus that its characteristic is order, and its object is se- 
curity through the integrity of the collective whole. 

The commonwealth has for its end protection, — the 
protection of private interests, as individual or collective 
Its organization is for the protection of interests involved 
in the necessary relations of men. It exists for the secur- 
ance of life and liberty and property, through the institu- 
tion of the system of civil rights. It embraces those wants 
which are necessary in life and their satisfaction. It is the 
same which those who have held only a negative and for- 
mal notion of the nation have apprehended and sought 
to embody in that. 

The commonwealth has for its province the economic 
organization of society. The system which is ordinarily 
described as public economy belongs to it, and writings on 
economy are mainly occupied with subjects which are its 
concern. It comprehends the relations of the vast and 
complex industrial processes of society. There is in its 
immediate scope the separate and the cooperative interests 
of agriculture, of trade, of mining, and of the mechanic 
irts. It is to direct the movements of production and of 



}08ition he afterwards assumes mar be allowed to justify it, since he is there 
under the necessity of establishing in the organization of the state a separate 
Dower or department, which is immediately concerned with private or civil 
nghts and the economy of the state. — Allgemeines Statsrechts, vol. i. p. 458. 

The present historical tendency indicates that in the unity of the German 
Ration the separate states, as Prussia, Saxony, Hanover, Bavaria, will exist as 
distinct commonwealths or civil societies, -forming in this respect a very c\t«i% 
parallel tc the United States. 



286 THE NATION. 

exchange. The adjustment of the relations of labor and 
of capital which represents the accumulated result of labor, 
is to be referred to it. It is to regulate the division of 
labor, and that which is of higher value, the union and 
cooperation of labor, and that which is of still higher 
value, it is to maintain the freedom of labor. 

The commonwealth has, in connection with the eco- 
nomic interests and laws of society, the department of 
social statics. The enactment of sanitary laws and regula- 
tions, and the foundation of sanitary institutions, belongs 
to it. It is to take necessary measures for the protection 
of health, and to secure society against whatever may be 
a public nuisance or a public peril.^ 

The commonwealth is formed in the institution and 
maintenance of civil rights. The individuals composing 
it are private persons, and as such they are comprehended 
by it; they have each their end in the necessary rela- 
tions of life to secure, and the security of their private in- 
terests is the necessary end for which the commonwealth 
exists. The individual, therefore, may require the security 
of his necessary rights from the commonwealth, and the 
commonwealth may require from each that he also hold 
these rights for others secure. There is, therefore, to 
be established through it the protection of each in his 
necessary rights and his necessary avocation, with no 
undue hindrance or unequal restriction. 

The commonwealth is instituted in the maintenance of 
justice in the necessary relations of life, or civil justice. 
This is the law which is formative of its whole organiza- 
tion, and is deJ&ned in a jural system. Justice is to be 
recognized as necessarily involved in the organization of 
society, and is to be affirmed as law, and to be adminis- 

1 The establishment of a quarantine and quarantine regulations, thus falls 
naturally within its object, but this ought not to be regarded solely as the con- 
cern of a separate commonwealth, and is not subject to internal administnu 
tion. Its institution in the harbor of New York, is of no more consequence to 
the people of the commonwealth than to the adjacent territory. 



THE NATION AND THE COMMONWEALTH. 287 

tered between man and man. Its violation is to be set 
forth as crime, and the penalties incurred by crime are 
to be defined and imposed. Since justice in the common- 
wealth or civil justice is apprehended as existent in the 
necessary relations of life, it is to be maintained through 
its whole extent for all men, and there is to be the recog- 
nition of the equality of all men before the law. It is not 
to assume a different principle of action for different sorts 
and conditions of men. It is to assert a justice which is 
impartial, or it becomes itself an organized injustice. It 
is to estabhsh justice in the authority of law, and to judge 
the infraction of law as crime. It is to maintain justice for 
every man ; and private revenge is forbidden as the rude 
justice of an unorganized and barbaric state. The execu- 
tion of justice is to be regarded as the necessary condi- 
tion of the commonwealth through its whole extent, and 
its whole power is to act in its ultimate enforcement. It 
is to be the guardian of every individual. The object, 
in the increase of the commonwealth, to be steadily re- 
garded, is that the process of justice shall not be neutral- 
ized through old and imperfect judicial organizations, 
where the abuses tend only to the emolument of a special 
and conservative profession, as in the commonwealth of 
Connecticut ; and that it shall not become entangled in 
intricate formalities, to become what CromweU called the 
law-system of his age, " a tortuous and ungodly jungle ; " 
nor that it shall affect, beyond the necessity of scientific 
precision, a phraseology unknown to the people ; nor that 
justice shall be made so costly that any shall be debarred 
from access to it. Justice is to be open and free to all. 
It should be the same for all, and thus in the apprehen- 
sion of crime no special or private rewards should be 
allowed, but it should be held as the office of the state; 
and no officer of the stat^ nor of its police, should be 
allowed to receive a tender of reward from private persons, 
nor should any gifl be made to justice. A system of 



288 THE NATION. 

private rewards gives to wealth and power a- special secur 
ity, which is iiot open to all, nor promotive of the security 
of the whole, and is but a slight advance from a system of 
private revenge. The commonwealth is to bring crime to 
the light, and its object is to protect rights and not crimin- 
als. The fair trial of aU charges is to be had, and the 
evidence of all, the plaintiff and defendant alike, is to be 
received that all may be known. The object is to make 
the conviction of crime snre and the punishment inevita- 
ble, and to determine the actual injury and the actual 
degree of guilt. The course of law thus is not to be merely 
formal and mechanical, as in an imperial code, but it is to 
regard the varying aspects of human action and the vary- 
mg conditions of human life. It is to take into account 
the age and circumstance and mental condition, and all 
which may be exculpatory in them, and to regard crimes 
to which different degrees of guilt attach, and for which 
there must be corresponding degrees in the punishment 
imposed. Thus the law, instead of an unvar3dng and me- 
chanical application, presumes the deliberation of those 
before whom trial is had, and the judgment of a judge. 

The commonwealth has the institution of its procedure 
in the common law. This is its exclusive province. It is 
this law which has been instituted in the ascertainment of 
the justice involved in the necessary relations of men. It 
recognizes a solid justice existent in the development of 
these relations. It is shaped in the jural definition of these 
relations. It acknowledges, therefore, as a prescriptive 
right, that which by long continuance has been wrought 
in the use and wont of men. It holds the right of ways 
which are open to all alike, and fair to all, and have been 
long trodden by the steps of men. It is this recognition 
of justice as existent in the necessary relations of men, 
which is the precedent of the common law, and the condi- 
tion of its legal positivism. It is not the tradition of anj 
code nor commandment, however ancient. 



THE NATION AND THE COMMONWEALTH. 289 

The principles to be regarded in the constitution of the 
commonwealth are those which define its unity and its 
scope. The unity of the commonwealth is that of the 
unitary organization of justice. Its authority is to have 
within itself no formal restriction and no sectional limita- 
tion. It is as a crime against the whole that the violation 
of its law is to be regarded and punished. The denial of 
the unity of the organization of the commonwealth was 
the ground of opposition to the important legislation of 
the commonwealth of Pennsylvania, in the succession of 
crimes and outbreaks of violence in SchuylkiU County in 
1867, and also to a system of metropolitan police in certain 
separate districts. But the commonwealth fails of its end 
when crime is allowed to remain unpunished, or rights 
become insecure through defect in its organization. There 
is no sectional right in the outlawry of a certain locality, 
to preclude the action of the commonwealth through its 
whole extent. 

The scope of the commonwealth has also no restriction 
in the institution of civil rights, and the determination of 
the whole civil order is within its sphere. The reason and 
the right of the legislation of the commonwealth of Penn- 
sylvania, w^hich modified the whole tenure of property, 
and was so great an advance in establishing the freedom 
of property, placing real property upon the same basis in 
certain respects as personal property,^ was opposed with 
the argument, not that the act was in itself unjust, but that 
it was beyond the scope of the commonwealth. But this 
rests in a deficient apprehension of the commonwealth, for 
in the normal civil order and civil administration, there is 
no formal limit to its action. 

The territorial extent of the commonwealth is commonly 
shaped by some circumstance, or some consideration of 
civil administration. It conforms mainly to the content of 
the commonwealth, and when once established it is to be 

1 Pri(* Act, April 18, 1853. 
19 



290 THE NATION. 

held stably, as xf it were itself bottomed in tbe common 
law, and as describing old and established interests which 
have grown up and repose in it. 

The nation in its civil organization may constitute a sin- 
gle commonwealth, or it may be divided into many and sep- 
arate commonwealths, and these may increase in number, 
with the extension of the national domain, and the change 
and growth of population. 

The conception of the commonwealth, as it has been 
represented in political science, has had its precedent in 
the slow advance of civilization. Its organization is not 
new nor strange, nor did it come forth at- once complete in 
all its powers in the beginning of the American state. 
The form may be discerned in its germ in the first unfold- 
ing of the civilization of the Teuton, and may be traced 
in the succeeding institutions of our ancestors as they 
emerge from the shadows of German forests. It appears 
in the structure of the constitution of England, in the or- 
ganization of counties for civil administration and the man- 
agement of local and special concerns, while embraced in 
the kingdom, and subject to the Crown and the Pailia- 
ment, in whom is the determination of the political whole. 
It appears in the distinction of the Hundred, and however 
rude and imperfect may have been the form of this, and 
howevex- widely writers may differ in defining its character 
and limitations, they all agree in the reference to it of the 
transaction of judicial, and the management of local con- 
cerns ; its primary object is that of civil administration. 
There is, in the " Lives of the Chief Justices," an illustra- 
tion of the manner in which this distinction was guarded. 
The writer says of the office of Chief Justiciar, as intro- 
duced by "William the Conqueror from Normandy, " The 
functions of such an office would have ill accorded with the 
notions of our Anglo-Saxon ancestors, who had a great 
antipathy to centralization, and prided themselves upon 



THE NATION AND THE COMMONWEALTH. 291 

enjoying the rights and advantages of self-government. 
The shires being parcelled into Hundreds and other subdi- 
visions, each of these had courts in which suits both civil 
and criminal might be commenced."^ It was not by a 
single assembly of men, however great, that so vast and 
noble a structure was conceived, nor in any single age has 
it been perfectly realized. It has been formed slowly in 
the long struggle of society toward the better attainment 
of its end. It will always obtain a more perfect form with 
the progress of the people. 

The commonwealth has, in the historical development 
of the United States, its amplest and its highest organiza- 
tion. There has been the illustration of its strength and 
its conformance in the order of the whole ; and also of its 
evil, when, severed from the whole, it has sought to build a 
civilization in the frirtherance of some separate and special 
interest, and to base in that the foundation of society. 

The sphere of the commonwealth must be ascertained 
by its content ; by what it is, and not by what it is 
assumed to be ; by its actualization, and not by any 
abstract conception of law, or empty theory of society. 
In the illustration of the nature of the commonwealth, 
reference is made to the constitution of the common- 
wealth of Pennsylvania, not only because it lies nearest 
at hand, but as that of one of the original thirteen com- 
monwealths, — a commonwealth as central, and as conserv- 
ative in the habit of the community as any, and comprehen- 
sive of as great and varied interests as any, and it has had 
in the revision of its constitution the aid of lawyers of sin- 
gular eminence. 2 And since what is assumed for one com- 

1 Lives of the Chief Justices, vo- i. p. 33. The distinction may be traced 
in its outline in defining the nation and the commonwealth, in the distinction of 
public rights and duties as supreme and subordinate. — See Christian's BL 
Comm. chart, iii. 

2 The commonwealth, as the civil organization of society, opens a more imme- 
diate field to lawyers; but then, also, by the same influence, they may be with- 
drawn too exclusively within its contemplation, and are apt to become, an^ 
for the same reason, — that is as also withdrawn exclusively in it, — what Di 



292 THE NATION. 

monwealtli, in its nature, is assumed for all^ the constitu 
tion of this may be taken as a legal instrument to famish 
its illustration. 

The formal organization of the commonwealth is in legis- 
lative, executive, and judicial powers, through which its 
order is construed. The legislative department has its 
province presumed in the nature of the commonwealth, 
and its special limitation in the judicial department. The 
judicial organization and form of procedure is necessarily 
more amply defined in the object of the commonwealth. 
The executive department is defined in the office of the 
governor, — a name not indicative of political precedence, 
nor suggestive of the sovereignty of the state, but denoting 
the direction of the internal administration, and the regu- 
lative or magisterial character of the civil office. 

The commonwealth is the institution of the authority of 
law in the civil order. It forbids that any shall be ar- 
raigned but by due process of law.^ It allows neither 
private revenge nor private judgment to assume the be- 
hest of justice. It regards crime as a violation of the 

Arnold called the political economists, — " those one-eyed men." But their ser- 
vices have indeed been conspicuous in the formation of the constitution of the 
commonwealth of Pennsylvania; and there is no commonwealth in which the 
jural scope has been more clearly maintained, or the province of its judicial in 
distinction from legislative powers more carefully and wisely guarded, and where 
the constitution has been so little cumbered with the detail which belongs to the 
sphere of legislative enactment. It bears the impress of the work of Wilson, and 
Gibbons, and Chauncey, and Sargeant, and Price, and Binney, and Wallace. 

1 The earliest historical assertion of law is not in the enunciation of a principle, 
bit in a judgment on a case (see Maine's Ancient Law, p. 3), and there is in it, 
whatever else there may be, the presumption of a substantial order in the neces- 
sary relations of life, and crime is adjudged in the interruption or violation of 
this; in this may be traced the historical development of the common law. Its 
origin is in no formal code, nor in the tradition of a formal code. 

"There have been," Mr. Maine says, "three agencies which, in its historicaf 
course, have shaped the process of the common law, legal fiction, equity, anc 
legislation." The first, whatever its advantage in some, periods, is a rude device 
and belongs mainly to the past; the second must constantly seek the aid of 
legis ation, as it finds expression in a positive form; and the third becomes the 
more potent agency. It is only within a very recent period that legislation has 
been brought to shape the course or to act in the explication of the common la>f 
in the commonwealth of Pennsylvania. 



THE NATION AND THE COMMONWEALTH. 293 

peace, and therefore as against the commonwealth, and in 
its name it is judged.^ 

The commonwealth is to institute courts for the admin 
istration of the civil order.^ The historical origin and form- 
ation of courts affords the widest illustration and evidence 
of its province. The court is constituted for the assertion 
and protection of civil rights. 

There is for every one subject to the authority of the 
commonwealth, the right to bring his cause into court, and 
each may be required to appear before the court, and the 
award of justice is rendered by it. The access to the 
court is for all, and " every man for an injury done him in 
his lands, goods, person or reputation, shall have remedy 
by the due course of law, and right and justice adminis- 
tered w^ithout sale, denial, or delay." ^ Before the court a 
trial of the cause is had, that justice in the matter may be 
ascertained. The method is demonstrative, and evidence 
is given and the facts in the case examined. The parties 
bring in witnesses to their suit, and everything concern- 
ing it is laid before the knowledge of the judge and the 
jury by whom the verdict is rendered. These successive 
steps are themselves rights, and belong to every one sub- 
ject to the authority of the commonwealth. There is for 
each the right to appeal to the court, to call witnesses, to 
have council in law, and to bring before the judge and jury 
all that may concern the action. Every individual in the 
commonwealth to whom its writ may come, is required to 

1 Constitution of the Commonwealth, Art. I. sec. 1. Art. 11. sec. 1. Art. VI. 
sec. 10. 

" The style of all process shall be, ' The Commonwealth of Pennsylvania,* 
•nd all prosecutions shall be carried on in the name and by the authority of the 
Commonwealth of Pennsylvania, and conclude ' against the peace and dignity 
of the same.' " — Ibid, Art. V. sec. 11. 

2 " The judicial power of this commonwealth shall be invested in the supreme 
«ourt, in courts of oyer and terminer, and general jail delivery, in a court of 
common pleas, orphan's court, register's court, and a court of quarter sessions 
of the peace for each county; in justices of the peace; and in such other ccnrtf 
ts the legislature may from time to time establish. '* — Ibid, Art V. sec. 1. 

8 Ibid, Art. IX. sec. 11. 



294 THE NATION. 

answer the summons of the court. In the feudal age, the 
nobility regarded it as an injustice that they should be 
held to obey this summons, or that the evidence of all meu 
should be received in respect to them, but in the new Par- 
liament House in London, a painting by the side of the 
throne represents the arrest of the heir to the throne by a 
London constable. The facts are to be brought out, and 
that only can be held as authentic which is brought to the 
knowledge of the judge and jury.^ 

In the court the method of procedure is formal and ex- 
act. This formality gives to the cause of every man the 
same dignity. It invests every charge and every suit, by 
whomsoever it is brought, with the same " solemnity. The 
same summons sets forth the claim alike of all, whether 
rich or poor or citizen or stranger. This formality secures 
justice from abuse, and forbids that the cause of any 
should be passed by hurriedly or slightingly. 

In the court the procedure is open to all. Its sessions 
are announced, and the whole action is public, since the 
crime is not alone against the individual, but against the 
peace and dignity of the whole ; and although the cause is 
between certain parties, yet the justice involved affects the 
whole ; and the punishment is not alone the satisfaction of 
a private wrong, but the consequence of the violation of 
the law. 

In the court the examination is before a jury, and judg- 
ment is rendered by it, and the verdict it returns when the 
offense is proven, is called a conviction. This is the office 
of the jury. 2 The trial by a jury is not, as De Lolme de- 
scribed it, simply to resign the individual to the judgment 
of a few persons ; but as Hegel says, it is the demand 0/ 
the conscience of the individual that justice be meted out 
to him, and the conviction is rendered as expressive alike 
of the conscience of the individual, and the conscience of 
the community which the jury represent. It is the claiu 

1 Constitution of the Commonwealth, Art. IX. sees. 9 and 11. 
« im, Art. IX. sec. 6. 



THE NATION AND THE COMMONWEALTH. 295 

over impulse and desire, of the conscience of ever^^ man, 
and the witness of his own, his true and better nature, 
which no crime can wholly silence, and which by crime 
has been most wronged. The punishment which follows 
is the manifestation of crime. It is not primarily reform- 
atory, and it may not always of itself have that effect upon 
the individual, but it is the sequence of crime in which its 
nature is manifested. The conscience of the individual 
and of the whole demands that crime shall be brought to 
light, and that punishment shall be inevitable, and the 
commonwealth fails of its end in so far as this is not ac- 
comphshed. The significance of punishment by solitary 
confinement, is in the fact that it is the reflex of the nature 
of crime itself, for evil, as the subversion of personality, 
involves the loss of freedom, and is the separation of one 
from his fellows, and the severance of relationships, and is 
•itself an isolation : thus solitary imprisonment is but the 
manifestation of the sequence of crime. The adoption of 
this mode of punishment indicates an advance in civili- 
zation. 

The commonwealth is to make provision for the institu- 
tion of officers in the civil administration, as for instance, 
the district attorney and the justice of the peace. The 
former office in its very imperfect construction, has some 
of the best elements of jural progress ; and of the latter, 
Stahl says, that the office embodies perhaps the highest 
conception in the Anglican civil system. It represents the 
peace of society as conditioned in justice. It is to consider 
in iU inception the charge of the interruption of the peace 
of society, and there was a deep significance in the formula 
in which the old writs ran : " In the peace of God, and the 
commonwealth." It has to provide also for the institution 
of aU offices of civil order, as sheriffs, justices, constables, 
"coroners, prothonotaries, registrars, and recorders.^ 

It belongs to the commonwealth, in the guardianship of 

* Constitution of the Commonwealth^ Art. VI. sees. 6, "; Art. IV. sec. 6 



296 THE NATION. 

interests, to enforce the execution of contracts and of wills, 
and the administration of estates. It has in its scope those 
institutions, so fundamental in the civil order, • — the con- 
tract and the will. The form in which these are executed 
is of consequence, since they are to be maintained and 
enforced as positive law. It is thus requisite that all wills 
shall be proven, and all deeds and titles are to be given in 
the name of the commonwealth, and it is to provide for the 
probate of wills and the recording of deeds.^ 

It belongs to the commonwealth, in the securance of 
interests, to regulate the relations of capital and labor, and 
to maintain and protect the division and cooperation and 
freedom of labor. It is to adjust the legal rate of interest 
upon capital. It is to charter corporations and to provide 
for their privileges, immunities, and estates. In the direc- 
tion of intercourse in trade and exchange, it has the super- 
vision of roads and highways, excepting only military 
and post-roads w^hich are in the immediate control of the 
nation. In the security of health and in sanitary provis- 
ions, it is to institute officers and boards of health, and 
hospitals, and asylums, and homes for the infirm or inca- 
pable, or aged or insane, and it is to provide for the pooi 
and to appoint overseers of them.^ 

It is for the commonwealth to establish municipalities, 
and to grant and convey municipal rights or privileges, and 
to institute the order and confer the powers which are 
requisite for the civil administration, in the organization 
of counties, towns, and boroughs within its limits. The 
execution of its powers is through a pohce and constabu- 
lary. 

There is in this summary the substantial content of the 
constitution of the commonwealth of Pennsylvania, ta 
which reference was made in illustration of the common- 
wealth in itself. This which was ascertained to be its nec« 
essary conception, has been its realization in its norma. 

1 Constitution of the Commonwealth^ Art. V. sec. 10. 2 jbid, Art. VII. sec. 6< 



THE NATION AND THE COMMONWEALTH. 297 

process. With the formal exception wnich is to be noticed, 
and which is not in all respects inconsistent with its admin- 
istration, this is all there is in it. There is no power be- 
yond this that could be actualized or strive for actualization 
in it without involving some contradiction. There is be- 
yond this only the sphere of legal fictions, of empty theo- 
ries, and political abstractions. - There is beyond no sohd 
ground. It is the field of restless visionaries and political 
dreamers ; and instead of the domain of substantial order, 
it has proven the confine of anarchy and secession and re- 
bellion. In it an evil ambition has wrought, and the 
forces of disorder and division have mustered. 

The powers which alone remain to be noticed, and which 
constitute an exception to the preceding, are those which 
refer to divorce, to education, to the resident qualifications 
of an elector, and to the militia as a local or constabulary 
force. These powers are such as in part are properly 
related to the normal administration and economy of the 
commonwealth, and therefore in certain aspects may be 
referred to it, or they are powers which, when left to 
the commonwealth, fail to obtain any substantial actual- 
ization. There is nothing in them to justify the specula- 
tion, which has assigned the most limitless scope to the 
commonwealth. The Hmitless in human affairs is indeed 
that only which is untravelled by thought. There is, in 
the civil and poHtical life, no sphere of arbitrary and indefi- 
nite powers ; the arbitrary is without the domain of law, 
and the indefinite is the unformed thought and purpose, 
the vagueness and weakness which appears in incapacity 
of thought and irresolution of will. 

There is an article on divorce, defining certain restric- 
tions of the legislative power in its action upon it, and 
then referring it to the courts. The administration in 
divorce, in its connection with the common law, passes 
consistently to the commonwealth ; but the nation hay ao 



298 THE NATION. 

immediate obligation in the maintenance of the family in 
its moral unity and moral order, and if it fails to attain this 
in its action through the commonwealth, it is imperative 
that it shall assume its immediate authority. There is no 
form that can intervene by which it can be divested of its 
obligation to maintain a moral order. 

There is an article on public instruction, which provides 
for the institution of schools, so that all may be taught 
free. But while the administration of a system of educa- 
tion may be referred to the commonwealth, its institution is 
of national importance, and also of national obligation, and 
in the defect of the commonwealth, its authorization should 
proceed from the nation. 

There is an article on the qualifications of an elector, in 
which the conditions of electoral power in the common- 
wealth are defined, while its electors are described as 
"citizens of the United States," and its special provision 
in respect to the commonwealth, is the Hmitation of the 
term of residence necessary before any election for "a 
citizen of the United States who had previously been a 
qualified voter" in the commonwealth, in order to vote 
at an ensuing election. The constitution of the United 
States describes the qualifications of an elector, but its 
definition is simply inclusive of the qualifications of the 
lower house in each commonwealth, and the more specific 
qualification is referred to the commonwealth ; but since 
the right to vote is a political right, and integral in the 
nation, the provision for it should be in the frmdamental 
law, and its guaranty in the supreme law of the people. 
The terms and conditions of electoral power cannot be lef . 
to the discretion of each separate commonwealth, without 
the risk of unequal qualifications which might act as a dis- 
turbing force, or tend to create alienation or division, and 
the definition of political power belongs to the nation. 

There is an article which provides for the arming, or- 
ganizing and disciplining of the militia, and describes the 



THE NATION AND THE COMMONWEALTH. 299 

governor as the commander-in-cliief of the army and navy 
of the commonwealth. Of this it is only to be said that 
the commonwealth has no right to declare war, and over 
the mihtia the governor has power only within the limits 
of the commonwealth, and he is thus only commander-in- 
chief, " except when they are carried into the service of 
the United States." It is only for internal order and 
administration that the governor has immediate command, 
and as the militia acts as a constabulary or police, to pre- 
vent a breach of the peace of the commonwealth within 
its borders. When the governor is represented as the 
" commander-in-chief of the army and navy of the com- 
monwealth," the office is not further defined. Since the 
commonwealths of the nation have for the most part no 
sea-ports and no sailors, and, in some instances, no nav- 
igable waters, the title can scarcely be supported. It is a 
name for which there is no reality, and except for lawyers 
it leads beyond all soundings. No navy has ever set sail, 
and no sailor has ever trod its deck, only constitutional 
lawyers have exchanged its signals and answered its 
salutes. It is as a legal fiction, if it can make that 
claim, but a painted ship upon a painted ocean, although 
for the lawyers who sail upon it, out on the limitless 
expanse, it is as good as oak and iron. And the gov- 
ernor in this character, on the streams to which he may 
often be confined, is like Wordsworth's fisherman, "tricked 
out in proud disguise." But this assumption of military 
and naval authority in its consequent weakness, is indic- 
ative of the neglect of the nation in its own sphere, to 
provide for the instruction and organization of the whole 
people, as a military force, which is its express obligation. 
The commonwealth is necessarily itself concerned with 
the militia only as a constabulary ; and when the military 
organization has been left to it, it has been at the most 
defective, and its display a masquerade to fill an idle hoh- 
day. There is in the commonwealth no conception, and 



800 THE NATION. 

no power of war, and it may neither declare war noi 
conclude peace. 

These powers, in divorce, in education, in the definition 
of electoral laws, and in the instruction and organization of 
the militia for local purposes, are alone those which have 
any description in the constitution of the commonwealth, 
that are not exclusively within its normal conception, and 
they in certain respects are not inconsistent with its admin- 
istrative order. But they are in a necessary and imme- 
diate relation to the nation, and their exclusive reference 
to the commonwealth becomes the defect in their institu- 
tion, or the source of weakness and of radical error in the 
organization of the whole. 

The nation and the commonwealth exist in a two-fold 
relation : firstly, the nation is immanent in the common- 
wealth ; and secondly, the nation is external to the com- 
monwealth. 

The nation is immanent in the commonwealth. 
The commonwealth of itself is incomplete, and presumes 
the being of the nation in which it subsists. The com- 
monwealth of itself has no permanence, and in the nation 
alone it has its consistent end. It is only as the nation 
is immanent in it, that it is brought into relation to its ob- 
ject in the unity of the whole. Then it is no longer sim- 
ply the private interest of the individual which is its end, 
but it is the end of the nation itself, — a moral interest 
which gives to justice alone its strength. It still institutes 
and administers justice with reference to the individual, 
and acts in the maintenance of private interests ; but its 
work is no more for a private end alone, nor simply that 
each individual shaU be secure in his special rights, but 
that all sources of disorder shall be removed, and all that 
hinders the administration of justice shall be overcome 
It is thus, as the commonwealth subsists in the nation and 
its moral order, that it brings to individual rights a perma- 
nence. 



THE NATION AND THE COMMONWEALTH. 301 

The civil order whidi may have the highest formal com- 
pleteness, when the life of the nation is no longer present 
in it as a sustaining power, is merely abstract. The mos^ 
perfect institutes of a civil system have of themselves no 
enduring power. The historian of Roman jurisprudence 
may justly describe the great worth to society of those 
civil institutions — the contract and the will, — but there 
was in them no inherent strength to save the society of 
Rome when the nation was crumbling beneath the weight 
of empire. In them there was no renovating energy to 
stay the corruption, or to check the swift decay that was 
undermining all within. It is thus that in imperial ages 
there may be a higher culture and structure of the civil 
order, as in France under the empire. It is thus, also, that 
the study of the civil law of itself has the attraction only of 
an external symmetry, and impresses one only as a formal 
system and as a cold and lifeless anatomy. It has not the 
spirit of an historic power. The genius of the great mas- 
ters of the Justinian era can throw over it only a faint 
glow, and the energy of a living spirit is wanting in the 
most splendid development of the civil organization of so- 
ciety.^ 

It is only in the immanence of the nation that the com- 
monwealth has its continuance in history. The structure, 
which is a combination of private interests, could not exist 
of itself in the strenuous conflict of the moral forces of his- 
tory. There can exist in history no mere negation ; and 
the commonwealth of itself can have no place among 
those powers which, in the life of humanity, bear its issues 
to their close. The assumption of the foundation of society 
in the commonwealth has been the precedent of a false 
civilization. Since the commonwealth exists only as the 
organization of the individual and collective interests of 
private persons, when the foundation of society has been 
nought in it, it has assumed a selfist principle as its law, 

1 See Merivale's History of the Romans^ vol. vii. p. 429. 



802 THE NATION. 

and its end has been the predominance of a selfish in- 
terest. And as the commonwealth is formed in the neces- 
sary relations of life, it cannot become of itself a power 
in history which is a moral order, and in the realization 
of jfreedom. It holds the web and the woof in which those 
historic figures appear ; but it apprehends not the unity of 
that design which through centuries, is wrought in the 
conscious purpose of nations. 

The nation in its sovereignty is immanent in the com- 
monwealth. Its determination is the supreme law ; the 
law of the nation is the law in every commonwealth. The 
constitution of the United States is the constitution of ev- 
ery State. The real sovereignty is in the nation, and the 
will of the organic people is prevalent through the whole. 
The power, as in any organism, acts through every mem- 
ber, and thus conversely the injury to a part involves the 
injury of the whole, and the peril to any commonwealth is 
the peril of the nation. 

The nation in its freedom is immanent in the common- 
wealth. This freedom is not simply the securance of 
civil rights, azu that in some transition may be better 
effected in an imperiahsm, but it is in the nation in its 
moral being. The life of the nation thus may become im- 
perilled through the commonwealth when its fi-eedom is 
not realized in it ; since then its spirit is no longer appre- 
hended in it, and there is a separation from the conscious- 
ness of its historical aim, and that corruption which is 
consequent when one existing among the parts acts upon 
the whole without any comprehension of the whole. The 
unity also of the nation is imperilled, if the fi-eedom of the 
people is not realized through the whole, and slavery lias 
its sequence in dissolution and division. 

The nation is external to the commonwealth. 

The commonwealth is invested with a formal sovereignty; 
It is not the sovereignty of the people, in its organic being 
but a formal sovereignty, limited to a certain process anc 



THE NATION AND THE COMMONWEALTH. 303 

to the formal exercise of certain powers for the prosecution 
of that process. The power is existent in the sovereignty 
of the organic people, and it is only in reference to the 
formal process in which the commonwealth is constituted, 
that the nation is external to it. 

The commonwealth has a formal, but not an organic 
unity. It is a whole only in its relation to the nation, 
and thi'ough it, to the other commonwealths of the nation. 

The commonwealth is defined by boundaries which are 
formal, that is, they are not the natural boundaries which 
div'de nations, as oceans, or mountains, or rivers ; nor the 
historical boundaries which separate one people from an- 
other, in their integral hfe, and are shaped in the struggle 
and conflict of history ; but they are the lines and angles 
which are traced in the formal demarkation of an estate, 
such hues as are drawn by the surveyor and the engineer. 
They cross rivers and mountains, and stretch away from 
the sea, and sweep by points of external defense, where 
one people might make a stand against another people. 
If there be an uncertainty as to these boundaries, the com- 
monwealth cannot maintain its position against what might 
be presumed an invasion, by any declaration of war on 
the invader, since it cannot declare war, nor can it deter- 
mine its own boundaries in dispute, but the settlement of 
them is with the nation. These boundaries thus cannot 
be conceived as those of a separate pohtical people in its 
historical course, and illustrate the fact that the common- 
wealth has in itself no elements of permanence in history. 
In the agitation in its movements, they would be obliter- 
ated as Hues drawn in the sand. 

The nation exists in an external relation to the com- 
monwealth ; but the commonwealth has in itself no ex- 
ternal relation, excepting only to the nation and to the 
other commonwealths through the nation. It compre- 
hends no foreign relation, that is, a relation to an interna- 
tional state. It can enter into no league nor alliance, nor 



304 THE NATION. 

form any treaty. It a crime has been committed against 
its peace by any person escaping to a foreign state, it is 
only through the nation that extradition is obtained, while 
on any commonwealth in the nation direct requisition may 
be made. If there be any invasion, it is the nation which 
is invaded, and the peril is for the whole people, and 
with its whole physical power it is to meet the invader. 

The commonwealth as constituted in this formal system, 
as a civil corporation, that is, as an artificial person, has cer- 
tain formal rights, or more exactly, immunities. If the 
divided, and in the development of the nation so rapidly 
increasing commonwealths, have each a necessary contin- 
uity, and the capacities of an organic people, in its organic 
being in history, then the rights of each are the rights of 
a nation in its sovereignty, and each may assume corre- 
spondent duties and obligations. But the commonwealth 
has no continuance in its separation from the nation, and 
its rights are existent in its formal organization, and it is 
the nation alone which can recognize these rights. These 
rights are maintained for the commonwealth, only as the 
commonwealth exists in the nation. 

Firstly ; There is for the commonwealth the right that 
the nation shall maintain it as integral in itself. It can 
detach no commonwealth, and allow none to be detached 
from itself. It can withdraw its authority from none, and 
can alienate or transfer none. It is not only existent in 
each, but it is existent in its unity and its entirety in each. 
Tt is thus that in the invasion or peril of one, it is the 
whole that is invaded or imperilled. 

Secondly; There is for each the right to the mainte- 
nance of its organization, in its normal action as a common- 
wealth. The order and the execution of justice is to be 
maintained in each, and if necessary by invoking the 
strength of the whole. The due form of law in the privi- 
lege and protection of courts, and the trial by jury, is to be 
sustained in each. The validity of contracts is to be en- 



I 



THE NATION AND THE COMMONWEALTH, 305 

joined in each, and through the separate commonwealths, 
the nation is to maintain for each fiill faith for its reports 
and judicial procedure. 

Thirdly ; There is the right to the maintenance in each, 
of the freedom of the nation. None can be reduced to a 
condition of mere subjection, as to some imperial power 
which is over and isolated from it. The right to the free- 
dom of the nation is in so far a condition of unity that if it 
be not realized in the commonwealth, the latter becomes 
in fact only a province, separated from the sovereignty and 
consequent freedom of the whole, and its members have 
no real citizenship. 

Fourthly ; There is the right in each to the maintenance 
of a definite boundary and domain. The lines are those 
which define the order of the organized administration of 
justice in the securance of private rights, that is, the rights 
defined in a civil system and the maintenance of private 
interests. These boundaries, while they are not such as 
separate one historical people from another, are such as 
appear in a vested or a customary right. They are the 
lines which are marked in the survey of property as in a 
private estate, and property requires exact limits and seeks 
security and stability in them, while change might tend 
to disorder, and occasion conflicting forms and titles and 
unsettle values. These lines are therefore to be carefully 
defined. While there is thus no moral ground which 
could hold them in the supreme necessity of the peo- 
ple, in the normal condition they are to be maintained in 
the order of the whole. It is thus that there is in them 
that attraction of association, and that wealth which gathers 
with the course of the generations, and they become like 
the lines of an homestead. They are to be so regarded, 
that no new commonwealth shall be formed out of another, 
but with the concurrence of iis own consent and of the 
authority of the nation. 

Fifthly ; There is the right to the maintenance in every 

20 



806 THE NATION. 

commonTN ealth of a form of government and organization 
corresponding to that of the nation. There is to be in 
none the incongruity which would appear in discordant 
forms. There is to be in none a form of government 
which shall isolate it from the order of the nation and of 
the commonwealths coexistent with it in the nation. The 
republic is to maintain for every commonwealth a repub- 
lican form of government. 

These rights in their maintenance necessarily presume 
the being of the nation, and have apart from it no actuali- 
zation. They are defined and established in the constitu- 
tion of the nation and in its supreme law, and form the 
high guarantees of the constitution. 

The more definite enumeration of rights is consequent 
from the formal process of the commonwealth, or from the 
formal equaHty of one commonwealth with another in the 
maintenance of interests ; as for instance, the right that for 
every crime committed within its limits as against its own 
peace and dignity, and in violation of its order, the trial 
shall be had within its limits ; that every criminal, where- 
ever he may be in the nation, shall be remanded to it on 
the requisition of its governor ; that upon the seas, rivers, 
and highways of the nation each alike shall have the same 
right of way ; that each shall be regarded alike m every 
regulation of commerce and revenue, and in these none 
have precedence to another ; that no vessels bound to or 
from one, shall clear or pay duty to another ; that the citi- 
zens of each shall alike be ehgible for the offices and trusts 
of the nation ; and the right, when its corporate rights and 
interests are endangered, to enter as a party in court, and 
the corresponding necessity to appear and answer a sum- 
mons as a party in court, but it is only in a court insti- 
tuted by the nation that this right of the commonwealth is 
construed ; and the right finally that to the citizens of each 
in its normal order there shall be given and secured aL 
the rights, privileges, and immunities which belong to those 



THE NATION AND THE COMMONWEALTH. 307 

of any of the several commonwealtlis in the nation, or the 
right to a formal equality in the commonwealth. 

The commonwealth is a formal organization. If the 
order of the commonwealth is overthrown in anarchy or 
rebellion, and its course is interrupted or overborne, it is 
in and through the nation alone that there is the power 
of reconstruction. The organization is formal, and it is 
upon the people in its organic and moral being, that is, the 
nation, that there is the ultimate obligation, although not 
always the immediate action, in the institution of rights 
through the whole and for the whole. The nation can 
therefore allow no civil formula to intervene between it 
and a condition in which civil rights are utterly destroyed 
through anarchy, or to restrain its action when robbery 
and murder and violence and crime in every shape prevail, 
but tried by no process of law and deterred by no punish- 
ment; and there is not in this condition the maintenance 
of the commonwealth, nor can it claim even the name. 
The curse of impotence would be upon the government of 
a people, which should aid or abet such a condition. 
There would be the failure of government to obtain its 
primary ends, and whatever theory of civil relations was 
adduced to justify it, it would denote the imbecility of a 
people. The theory would be a theory of anarchy and not 
of the state. The government restrained from its end in 
this formahsm could not long endure. It would be itself 
the greater criminal. The commonwealth is only formal, 
and the subversion of the civil order within it empties it, 
and there remains only a territory and an unorganized 
population among the vestiges of a past civil system. 

The nation and the commonwealth, in the coincidence 
of the civil and poHtical organization, hold certain neces- 
sary powers, which are involved in their order and admin- 
istration. These are the concurrent powers of the consti- 



808 THE NATION. 

tution. Their ultimate ground is in the sovereignty of 
the people in its organic unity ; but they are necessary to 
executive action alike in the civil and the political sphere. 

The illustration of these powers is in the power to levy 
taxes, and the power to call out and employ for its object 
physical force. But the power of taxation in the common- 
wealth is strictly internal, and the force it calls out can 
act in its immediate direction only as a constabulary for 
internal order. 

The principle determinative of these powers is implied 
in the nature of the nation and the commonwealth. The 
power in the commonwealth is subordinate and dependent. 
Kent says, " Although the State legislatures have a con- 
current jurisdiction in the case of taxation, except as to 
imposts, yet in effect though not in terms this concur- 
rent power becomes a subordinate and dependent one. 
In any other case of legislation, the concurrent power in 
the State would seem to be entirely dependent,'' etc.^ 

The distinction in the nation and the commonwealth be- 
comes more apparent in those powers in each, which have 
in their procedure a more immediate correspondence, as 
the judiciary. The distinct nature of each has determined 
the object of the action of this power in each, while the 
form of action is the same. It is thus, in the words of 
Kent, that " the judicial power of the United States is nec- 
essarily limited to national objects." It has for its province 
the application in cases involving a conflict of rights, of 
vhe constitution as the supreme law, and of the acts of 
Congress as laws, and it is to give judgment in cases 
which arise in a controversy between separate common- 
wealths, and when action is brought by a member of 
one commonwealth against another, and in cases arising 
in the external sovereignty of the nation under treaties 
and in revenue or admiralty practice. But Kent says, of 
a principle which, involved in the necessary conception of 

1 1 Kent's Comm. p. 393. 



THE NATION AND THE COMMONWEALTH. 309 

the commonwealtli, has struggled toward a clearer recog- 
nition, " the United States has no common-law jurisdic- 
tion in criminal cases." ^ To this he adds, in explication 
of the same principle, " the vast field of the law of prop- 
erty, the very extensive head of equity jurisdiction, and 
the principal rights and duties which flow from our civil 
and domestic relations, fall within the control, and we 
might almost say, the exclusive cognizance of the State 
governments." ^ 

The earher decisions of the judiciary of the United 
States were the embodiment of a profound national spirit, 
and the contrast appears, as we turn from the weight of 
their decisions to the bulk of the later, and pass from their 
large and sohd conceptions to notions which only obtain 
consistency in the writings of Calhoun and Tucker's 
Blackstone. There was in these earlier decisions a con- 
ception of the being of the nation, which the nation in its 
progress could advance in, but which it could only by its 
retrogression reject, and by its dissolution obliterate. 
They laid the foundations in which the people can build. 
The precedents which they established apprehended clearly 
the substance and object of the nation and the common- 
wealth, and they embodied in a massive and symmetric 
order the conception to which the masters in political 
science had sought to give expression. 

The relation of the nation and the commonwealth, the 
international and the civil state, is fandamental. It is only 
in their necessary conception that this relation is ascer- 
tained. It is only in their substance that this relation is 
realized. In contrast to the exposition of their necessary 
relation, which has its premise in their content, there are 
certain theories which comprise mainly the phases which 
he subject has assumed in abstract speculations and legal 
presumptions. These theories are mainly significant in 
their contrast to the principle which has been established. 

1 1 Kent's Comm. pp. 367, 500. 



310 THE NATION. 

Firstly ; There is a theory in which the States are repre- 
sented as simply vast corporations which had their origin 
in some charter or patent, and continue with substantially 
the same privileges and prerogatives once vested in them 
They are corporations overgrown with time, a mass of un- 
defined forms and an accumulation of interests, but in con- 
formance to no consistent principle, and constructive of no 
consistent order. 

But in immediate answer to this it may be said, — Firstly ; 
These powers are not thus undefined and unlimited, but 
exist in a clear limitation, and are the same in each com- 
monwealth, and are part of the same order. The theory 
would indicate a condition which ought not to be main- 
tained if it existed, and would imply the social disorder, 
not the organization of a fi-ee people. The theory presents 
the opposite of their actual condition. Secondly ; It is not 
to be presumed that these civil states could continue only 
as vast corporations, whose charters had lapsed, and which 
then remained with these positive but indefinite and mis- 
cellaneous powers. There is no country that could exist 
in the confusion that this would involve, and the civil states 
could not occupy the place which they have with no other 
ground or content. Thirdly ; There has never been an 
historical people that would refer its whole civil system to 
an organization which had no other character than this. 
To entrust the security of civil rights, of life and liberty 
and property, to such a power as this presents, and to abide 
in its judgment upon them, involves that which no people 
would allow. It would contradict every conception of civil 
order, and it has in civil society no parallel. Governments 
in every form have been imposed upon a people, but no 
people have ever conceded to an organization such as this 
assumes, the powers existent in a commonwealth of the 
United States. 

Secondly ; There is a theory in which the States or com* 
monwealths are represented as separate societies, each pes- 



THE NATION AVJ> THE COMMONWEALTH. 311 

sessed of the sovereignty and independence and continu- 
ous being of a separate political power ; each is possessed 
of the highest political attributes ; each may claim the 
ultimate obligation of all its members, and to it their ulti 
mate obedience is due ; there is for each a distinct histori- 
cal place and destination, and each has immanent in itself 
all the capacities of an international power. These States 
are connected in a government to which they have del- 
egated certain powers, expressed in a written contract, 
while all other powers, which can attach to the most un- 
limited conception of political action, remain resident in 
tJiemselves. The government established through this 
agreement is formed as their common bureau, or general 
agency, for certain objects. This theory was the postulate 
of the action of Calhoun and Davis and Stephens. It led 
the former, in 1831, to assert the right in each State, 
within its own limits, to nullify any act of the national 
Congress which it might deem unconstitutional or unjust, 
and it led the latter, in 1861, to assert the right in each 
State to secede, and to maintain in itself a sovereign, inde- 
pendent and continuous existence. 

There is in this theory the explicit assertion of a confed- 
erate and the rejection of a national principle, and it pre- 
sumes its inconsistence with the unity and being of the 
nation. This will involve a separate consideration. But 
the only answer to this theory, which is beyond all contro- 
versy, and is that of the realism of history, is that the 
separate commonwealths have no realization in history in 
conformance to this conception. The right, for instance, 
vhicli in history is the crucial test of political sovereignty, 
the right to enter into relations with other nations, and 
to recognize them and be recognized by them, has never 
been possessed by these communities, and the power ap- 
parent in the inception of national existence is wanting 
to them. The theory is unreal ; but it is that evil theory 
which apprehending the commonwealth as identical with 



312 THE NATION. 

the political people and apprehending nothing beyond, had 
its logical sequence in the subordination of the whole to a 
special interest, and consistently assuming slavery as that 
interest, induced the effort for that object, to effect the 
destruction of the whole. The events of history in the 
guidance of the people in its organic and moral being, are 
the witness to that unity, the rejection of which is blind- 
ness to the actual life and relations in which men exist. 
This assumption of a political contradiction — the presence 
of a real sovereignty in the nation and also in the 
commonwealth — has its result told in the impassioned 
words : — 

" My soul aches 
To know when two authorities are up, 
Neither supreme, how soon confusion 
May enter 'twixt the gap of both and take 
The one by the other." i 

This theory sought to obtain realization in the articles of 
the confederation, which was precedent to the constitu- 
tion ; but these articles failed, because they were an ab- 
straction and had no correspondence to the real constitution 
of the people. And the constitution which was then en- 
acted is the exponent of the people only because it is the 
supreme law, and the government instituted in it is not 
one of separate States, but it is ordained and established by 
the people, and represents an organic relation to persons 
as members of it ; that is, it is the constitution of a nation. 
The real sovereignty is in the organic people, whose will 
is the supreme law ; but it is the people of the United 
States, and not of each or any particular State, whose will 
is the supreme law. And sovereignty exists in the people 
in its organic continuity ; the people in no separate State 
is thus formed, but the citizens of one State are the citi- 
zens of every State, and since a state cannot exist as an 
abstraction, it follows that none can be regarded as sepa- 
rate from the organic whole. 

^ CoridamtSf Act 3, so. 1. 



THE NATION AND THE COMMONWEALTH. 313 

This theory had its consistent representative in Mr. 
Calhoun, who avoided none of its necessary conclusions j 
but he gave no conception of a political life beyond the 
commonwealth, and the state for him was only a society 
existing in jural relations, and composed of individuals 
related to it as private persons, and having for its end the 
securance of private interests in their individual or col- 
lective character. This theory is beyond consideration in 
itself, since it involves conclusions which it would be the 
unreason of things to allow, and would deny the conscious 
spirit and life of the people, the organic being of the na- 
tion in history.^ 

Thirdly ; There is a theory which represents the people 
as existent as an organic whole, while in its complex polit- 
cal organism the States are each an integral and original 
part. The sovereignty is in the organic people, while in 
the necessary organization of the people the States are in- 
tegral ; or in other words, the sovereignty is in the political 
people, in whose real political constitution the States are 
necessary. This is the position of Mr. Brownson, and ap- 
parently of Mr. Hurd. Mi\ Brownson says, " the sover- 
eignty is in the States united, not in the States severally." 
Mr. Hurd says, " The constitution as a political fact is 
the evidence of the investiture of certain sovereign na- 
tional powers in the united people of the States antecedent 
to the constitution, as well as of the residue of sovereignty 

1 On the false origin of civilization in the conception of the commonwealth as 
separate from the nation, see Maurice's Prophets and Kings, passim. 

" The commonwealth presumes the nation and subsists in it. When the state 
is represented as only a union of various individuals, or an association, it is only 
the commonwealth that is apprehended. There are modem publicists who have 
given no other view of the state." — Hegel, Philosophie des Bechts, p. 241. 
This criticism mainly applies to the view of the state in an empirical school. 
It is given in the writings of Mr. Macaulay, and it is reiterated in the political 
writings of Mr. Mill, and the political conception is constantly in the exclusive 
representation of the commonwealth, and this may be at least the consistent 
groimd of tbp admiration of the latter for the political speculaii<?iw ■/ Mr 
'alhoun. 



314 THE NATION. 

in the same people m their several condition of the people 
of distinct States." ^ 

This theory is more thorough, and may claim an higher 
historical consistence than either of the preceding. But 
it is defecoive if it may be conceived to place the form of 
the state above the life of the state, or to condition the life 
upon the form. There is no preconceived political form to 
which the being of the political people is to correspond. 
The real sovereignty of the people can be predetermined 
by no form, but it is itself to determine the form of its 
poHtical life. The fact that in a certain period it acts in a 
certain form does not therefore make that form necessary 
to its being, nor forbid that it may be • changed. And 
sovereignty subsists in a unity, not in an aggregate, and is 
existent in the people not simply as a territorial people, 
*,lthough it is in the people of the land, but in the people 
as organic and moral. There is also a formal sovereignty, 
and the exercise of certain powers necessary to its normal 
executive action, that is, vested powers, in the common- 
wealth, and it is because the organic people forming the 
nation has a real sovereignty that the powers existent in the 
commonwealth cannot be wholly beyond its recall, or utterly 
detached from it, as would follow, for instance, in the seces- 
sion of a commonwealth. And if, as this theory implies, 
the existence of the several civil States is necessary in the 
realization of the sovereignty of the organic whole, then the 
acts performed and the laws enacted in the interval of the 
action of each and all might be reversed or annulled, as 
transpiring in some interregnum and void of sovereignty. 
And the order of the separate commonwealths is formal, 
and in the supreme necessity of the organic people they 
may be merged and remerged into each other. The na- 
tion is not conditioned upon the existence and continuance 
of the separate civil States in their extant form. It could 

1 Brownson, The American Eepvhlic, p. 220. Hurd, Law of Freedom, eta., vol 
. p. 408. 



THE NATION AND THE COMMONWEALTH. 316 

exist througli one as through another political form, and 
even while all the commonwealths included in it were 
changed. It has not the condition of its being in anj form,, 
nor its hmitation in an external order.^ 

But there is in none of these schemes the exposition of 
the nature and relation of the commonwealth and the na- 
tion. The realization of the commonwealth and the nation 
in conformance to their necessary conception, — the com- 
monwealth as the civil organism, subsistent only in the 
nation, and in its formal order invested with a formal sove- 
reignty, but with the ample sphere of the civil organiza- 
tion, in which individuals have the institution of their pri- 
vate relations ; and the nation, as the moral organism, the 
being of the organic people in its freedom; — the result in 
this is before and beyond any theories or any formulas. 
In the realization of history it ca^nnot be changed by them 
so as to be made as if it were not, but in their prevalence 
its development may be disturbed or detained. 

The premise of the distinction in the nation and the 
commonwealth — the United States and a particular State, 
— has been assumed in certain propositions which claim a 
separate notice. 

Mr. Calhoun defines the principle on which the distinc- 
tion is based, " The division of the powers of the govern- 
ment was effected by leaving subject to the control of the 
several States, all powers, which it was believed they could 
advantageously exercise, without incurring the hazard of 
bringing them in conflict, and by delegating others specifi- 
cally to the United States." ^ This is the apphcation of a 

1 Hurd, Law of Freedom, etc., vol. i. pp. 400-415. Mr. Hurd's exposition of 
the historical course of the state is indeed masterly; and one cannot avoid 
regret that the writer, who has shown tne widest political learning and the finest 
freedom of thought of any American publicist, should have been led to and 
through this long compilation of laws on slavery. It only indicates in how many 
ways the system has been the source of loss to us. 

* Calhoun's Works, vol. ii. p. 420. 



316 THE NATION. 

mere empiricism, wliicli proceeds only on the principle of 
an avoidance of conflict. It is for the keeping of the 
peace between the separate commonwealths. It presents 
the commonwealth as the integral and original power, and 
the government of the whole is not ordained and estabhshed 
by the organic people in its sovereignty, bnt constituted by 
the delegation of certain powers of and from the several 
States ; and it again illustrates the fact that Mr. Calhoun 
apprehended nothing beyond the commonwealth. It is 
also the assumption of only a negative principle, the avoid- 
ance of the risk of conflict, and therefore cannot become 
the ground of a positive order, nor constructive of any- 
thing. It prescribes also only the form- of the common- 
wealth, and the principle in which the powers of the whole 
are left to be determined is not given, but they are merely 
represented as " others." In the principle assumed, more- 
over, instead of escaping the hazard of conflict, in its poht- 
ical conception it has become the inevitable source of con- 
flict, and has borne in itself the elements of dissolution to 
the whole. 

The distinction is often represented as that of a central 
government and a self-government, meaning by the latter 
simply a local administration. But this is obviously de- 
fective, since the distinction is not one of government and 
administration. There is government and administration 
alike in the parts and in the whole. There are in the 
nation necessarily immediate administrative powers, and 
these aflect every individual in the whole, and there is a 
central government and strictly central system, as of a 
wheel within a wheel, in the civil organization. There is 
indeed in the commonwealth the administration of its 
order, or a local administration, but this distinction fails 
to ascertain the principle in which its order consists. The 
work of De Tocqueville, so profound in its apprehensior 
of the thought of another people, the gift of a citizen of 
France to the United States, has illustrated the worth of a 



THE NATION AND THE COMMONWEALTH. 317 

central government and local administration, or a self- 
government in the meaning of the local administration of 
local affairs ; but there has been beneath this the develop- 
ment of a far grander and more complex order. 

There is in the writings of Mr. Choate a significant il- 
lustration of the principle which has been ascertained. In 
endeavoring to sustain the separate political sovereignty of 
the separate States, when he defines the powers existent in 
the commonwealth he says, " one of the prerogatives of 
sovereignty — the prerogative to take life and liberty for 
crime, — is theirs without dispute." ^ It is indicative of the 
principle in their distinction, that on the assumption of 
their sovereign powers this only can be cited without dis- 
pute which is itself not strictly, in the conception which 
has been ascertained, the act of pohtical sovereignty, but 
belongs to the commonwealth in its formal sovereignty, 
and is necessary to its executive action as the civil system 
in the nation. 

There is an apparent objection to this principle in a 
declaratory statement of the constitution describing powers 
as reserved to the States, or to the people. But this, while 
not in immediate variance with this distinction, has no 
immediate apphcation. The constitution asserts in the 
amplest measure national powers, and prohibits powers 
to the commonwealth. The powers are not reserved by 
the States to themselves, since inasmuch as the States 
lid not grant powers, they could reserve none; and the 
power asserting itself, is of the people, whose will is alone 
the supreme law over the whole. The phrase also, " the 
States," while it is represented as identical with the 
people, by a common principle of interpretation in law, 
must be explained as congruous with the same term in the 
preceding sentences of the legal document in which it 
appears. 

i Choate's Works, vol. i. p. 197. 



818 THE NATION. 

The importance of the definite consideratioi. of the dis- 
tinction of the nation and the commonwealth constantly 
appears. A senator said of the Civil Rights Bill, that it 
opened " a new epoch in the legislation of America ; " and 
while that great bill had its constructive principle in the 
immanence of the nation in the commonwealth, and the 
nation is to maintain not the pretense of civil order, but 
the commonwealth in its reality organized in the unity 
of the nation, yet whatever should tend to bring the nation 
to assume in itself the immediate sphere of the common- 
wealth and its permanent retention, would involve the 
most grave disaster. It might, as in the institution of an 
imperialism, secure a more perfect civil order for a certain 
period, but it would not continue long. In its close it 
would be destructive of the noblest civil and political order 
that society has yet attained. 

The clearer recognition of this distinction is the con- 
dition of the higher development of the commonwealth 
itself. There can be but an imperfect advance while its 
nature is undefined and its province is undetermined. Its 
object must be clearly apprehended. There devolves upon 
it, says Kent, " the duty that its jurisprudence be culti- 
vated, cherished, and exalted," and this, while not strictly 
comprehensive of it, indicates its immediate design. The 
legislature has not in the civil organization the relative 
position and precedence which it has in the political body. 
The best elements of stability in the commonwealth of 
Pennsylvania, have been in the withdrawalof that which 
was not clearly to be referred to the legislature and itt 
refsrence to the courts. The securance of civil rights is 
the immediate act of the judiciary, and it is vain to divide 
its responsibility, or to construct a power to act in its stead, 
or to merge its offices or functions with those of the legis- 
lature. If it becomes weak or corrupt, the only remedy is 
its reconstruction in the commonwealth, and not the ac- 
cumulation of its powers in the legislature. 



THE NATION AND THE COMMONWEALTH. 319 

As the commonwealtli is formed in tlie jural relations of 
society, the common law, through the common working of 
many commonwealths in a pohtical whole, may have hefore 
it in their varied process an higher attainment. Its aim 
is to be the administration of justice. The better civil 
order is in the higher manifestation of justice, and th*e 
clearer assertion of the nature and doom of crime. Pun- 
ishment is to be made inevitable as the manifestation of 
crime. Justice is imperative, and perfect justice alone 
truly imperial. There are false theories of conscience 
and crime which make the one a mere negation, and the 
other only an imperfect stage of development, and hold the 
conflict of good and evil as a neutral field ; and there is a 
necessitarianism in which there is the denial of the reaHty 
of crime, and there is a humanitarianism which is con- 
sistent with no just and holy conception of the origin or 
the destination of humanity, which are undermining the 
order of society, and converting into a poor pretense its 
most awful institutions. There is the demand for a more 
manifest justice. It is a day of evil for a people, when it 
comes to regard the punishment of crime only as the 
sequence in some legal formula, or determined in some 
social contract or some law of expediency, and when its 
statesmen lose all consciousness of a divine obligation, that 
crime must be punished, and wicked men must meet the 
consequence of their deeds. This is the end in the com- 
nonwealth, and in its failure to realize this it is separated 
Tom its ground in the nation, and its organization no 
longer corresponds to its end. 

There has been in the historical course of the United 
States the higher development of the civil and political 
organization of society, — the commonwealth and the na- 
tion. Their sequence is not the mere accident of history, 
nor the induction of an arbitrary theory, nor the assump- 
tion of a legal formula; but it has been justified in the 



820 THE NATION. 

reason of the state. It is an organization ampler and 
nobler than they who in the generations have bnilded in it 
could wholly comprehend ; and working steadily and faith- 
fully in their own day, they have wrought m the ages, 
building better than they knew. It has been vindicated 
in political science in the pages of its few masters. It fills 
the almost prophetic conception of Milton, — " not many 
sovereignties united in one commonwealth, but many com- 
monwealths in one united and intrusted sovereignty." 

The commonwealth is poor and empty, as are all things 
else, in seeking to be something other than itself. When 
it assumes a national place and national relations, it is 
severed from its consistent strength and its symmetric 
order, and is weak in the assumption of unreal powers. 
It becomes the caricature of the state, moving with a de- 
ceptive pomp in a disastrous pageant. In the building of 
a false civilization, in the accumulation of merely material 
interests, it bears with it the ruin of a people. The family 
has its own place, and the commonwealth has its own dig- 
nity ; but the worth of each is in the falfillment of its own 
law. And if the commonwealth, instead of its maintenance 
in the unity of the nation in which its interests alone have 
a moral ground, and are formed in the spirit of a moral 
interest, is broken and dissevered from it, it is when ma- 
terial possessions are counted as beyond freedom, and gold 
is more precious than humanity, — the golden wedge of 
Ophir more precious than a man. 



CHAPTER XVII. 

THE NATION THE ANTAGONIST OF THE CONFEDERACY. 

The nation and the confederacy represent tlie forces in 
conflict in human society. 

The nation in its organic and moral being in history 
may recognize other nations, and may enter into certain 
relations and assume certain obhgations with them ; it may 
form an alliance or join in a league with them, for certain 
objects defined, for instance by a treaty between them ; 
but each is subsistent in itself, and the convention which 
they form obtains its only force from the sovereignty of 
each persisting in it, and is conditioned upon their contin- 
uance, and expires with its own limitation or with their 
retirement. But this presumes the existence and affects 
only the powers and obhgations of separate nations.^ It 
is apart from the principle of confederatism. 

The confederacy is the construction of society in its own 
exclusive type. It defines the origin of society in the vol- 
untary action of certain separate parties, and it is formed in 
their contract ; its powers proceed from the contract of 
those who are associated as private persons in it, and the 
authority of its government is derivative from the arrange- 
ment of the articles of this contract. The formation of 
society is artificial, and the government and order of the 
world are of human contrivance, — certain expedients for 
the accomphshment of secular and separate ends. The 

1 A principle of politics of increasing strength in this age is " freedom from 
alliances," and this is indicative not only of changes in the character and rela- 
tion of nations, but of the stronger personal life of the nation. There was this 
consciousness of freedom in the advice of the fathers of the republic, as in tin 
words of President Washington, " a^oid all entangling alliances." 
21 



822 tHE NATION. 

state is the exclusive possession of those who have con- 
structed it ; its government is their agent ; its justice the 
scheme of their legislators ; its freedom the resultant con- 
sequent from the exchange conducted on the entrance to 
it; and each is limited to the proprietors who are joint par 
ties in it. The end of society is the securance and ftu'- 
therance of private interests ; its order is the balance of 
these interests; its government is the representation of 
these interests; its primary and exclusive function is their 
protection. 

The confederacy may be defined as the combination of 
separate individuals or societies who enter into a volun- 
tary agreement, and in the arrangement which they have 
formed there is the source of government ; the limita- 
tion of its action is with the several parties, and in the ex- 
press terms of their arrangement, that is, it is the origin 
and institution of society in conformance to the civil con- 
tract. The highest principle in it is not the institution of 
justice which is in itself before all legislation, and is not 
created by it ; nor the organization of rights which it may 
recognize but cannot bestow, nor the realization of free- 
dom which although posited in an external order is of the 
spirit of man, and can no more be conferred by the lawyer 
than by the preacher or prelate or king, but it is the law 
of combination after which it is constructed. The confed- 
eracy has been called by its historian, " the most polished 
and the most artificial production of human ingenuity," 
and defined as a system in which each party, "as an inde- 
pendent and sovereign power, and as in itself absolute, 
enters into a compact with others."^ Montesquieu, while 
regarding its primary object as security, which is assumea 
as belonging to it in a greater degree, describes it as " an 
assemblage of societies which is to arrive at such a degree 
of power as to provide for the security of the whole.*' 

1 Freeman's History of Federal Government, vol. i. p. 6. 
8 Montesquieu's Spirit of Laws, bk. ix. ch. i. 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 323 

The end is here only that of the commonwealth with 
which the state is identified. In the period in which Mon- 
tesquieu wrote, it was presented as a formal system, — a 
precedent to oppose the formal system which identified the 
state with the prince, and in the confiict with the legal 
assumptions of feudalism, the social contract had a value 
while maintained as a legal fiction. 

The formal constitution of a people in some period of 
transition — as in an early stage of pohtical development, 
or a later stage of pohtical degeneracy, — may take the 
shape of a summary of articles in conformance to a confed- 
erate system, but its characteristic is always the lack of 
permanence. If the people exist in the unity of a con- 
scious and organic life, and in the continuity of an integral 
power in history, it is set aside as not representing the 
reality, and in the development of the people in its na- 
tional being, with which it cannot consist, it is necessarily 
rejected ; or if through the ascendency of a selfish power 
the unity of the nation is broken by it, there is in the lapse 
into the confederacy only the evidence in its external con- 
dition of that which has been wrought within in its moral 
dissolution. 

The confederate is the immediate antithesis to the 
national principle, as the confederacy is the necessary 
antagonist to the nation in history. This antithesis be- 
comes apparent in every aspect in which they may be 
regarded. The nation, as the organism of human society, 
presumes an organic unity; and its being, as organic, is 
that which no man can impart. The confederacy assumes 
the existence of society as artificial, as formed through an 
association of men in a certain copartnership of interests, 
and as only the aggregate of those who, before hving sep- 
arately, voluntarily entered it. The nation is formed in 
the development of the historical life of the people in its 
unity ; the confederacy is a temporary arrangement which 
is formed in the purstanci of certain separate and secular 



824 THE NATION. 

ends. The nation in its necessary being can have its ori- 
gin only in the divine will, and its realization only in that 
The confederacy assumes the origin of" society in the vol- 
untary act of those who separately or collectively enter it, 
and its institution has only this formal precedent. The 
nation is constituted in a vocation in history, and therefore 
has its own purpose and work ; and of this it cannot divest 
itself, as if it was an external thing, nor alienate, nor trans- 
fer it to another. The confederacy is the device of a tran- 
sient expediency, and in conformance to certain abstract or 
legal notions, or formulas, as the exposition of a scheme. 
The nation exists as a relationship, as it is in and through 
relations that personaHty is realized ; and it can neither 
have its origin in, nor consist with, a mere individualism. 
The confederacy comports only with an extreme individ- 
ualism, — the association of private persons, the accumu- 
lation of special interests, to be terminated when these may 
dictate or suggest. The nation exists in an organic and 
moral relation to its members, and between the nation and 
the individual no power of earth can intervene. The 
confederacy is only a formal bond, and the individual has 
no more, in the state, an end in correspondence to his 
moral being; and it is thus that the word confederate has 
become stamped with a certain moral reprobation. The 
nation exists in its unity in the divine guidance of the 
people. The confederacy allows only the formal unity 
which is created in the conjunction of certain men or 
associations of men. 

Their antithesis appears the more obvious, the more 
intimately they are regarded. The confederacy assumes 
only the aggregation of separate parties, as individuals or 
societies, but allows no principle in which a real unity may 
consist, nor the continuity in history of the generations of 
men. It is a formal order whose condition is a temporary 
expediency, and its limitation is defined in that, and not in 
the conditions of an organic and moral being. It is no* 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 326 

the guidance of the people in its vocation, in the realiza- 
tion of its being in history, but its structure is framed aftei 
its own device, and out of the material which it has heaped 
together. It builds of its own brick and mortar — which 
it has accumulated, — what it alone can build, although its 
brick be as venerable as that upon which Mr. Carlyle has 
pronounced his pohtical eulogium, building after its own 
schemes in the structure of society a Babel, and the result, 
which is not only a recurrent fact but a moral necessity, is 
that the work fails of all permanence in history, and the 
builders are driven away, or if it be preferred, they go 
away with confusion and division. 

The antithesis which appears in the national and con- 
federate principle has its manifestation in history. The 
confederate principle in its necessary sequence can bring 
only division, and unity and order are established only in 
the same measure in which it is overcome. The security, 
which it has made its single aim, it has failed to obtain ; 
and in the furtherance of private and special interests it 
has been rent and broken by them. The pages of history 
contain everywhere the record of its disaster. The illus- 
tration of its course and its consequence appears — as in 
these lands also it had its widest construction — in Greece 
and in Germany. The termination of the history of Greece 
is abrupt, as if the sudden and violent issue of crime. It 
was as the confederate spirit came to prevail, in the divis- 
ion of her separate communities, and in the exclusive as- 
sumptions and supremacies of these communities, in the 
precedence of Athenian, and Spartan, and Theban, and 
Macedonian power, that the strength, which in its unity of 
spirit had triumphed over the multitudes of Asia, was lost ; 
and in the dissension of these communities, which preferred 
alliance with a foreign power, so entirely was the national 
purpose effaced, and in the rivalries and jealousies of private 
ambition and devotion to private ends, the life of Greece 
Was destroyed. The onlj union sought or allowed Was in 



326 THE NATION. 

that fatal device, a balance of power, wMcli was always 
irregular and disturbed, while separate communities with 
their separate interests alternately contended for the su 
premacy. The disease in the members could be overcome 
by no organific force working in the whole, for this was 
prevented by the assumption of a merely formal relation. 
Then followed a succession of internal wars, interrupted 
only by transient intervals of peace. The greater power 
of the confederate principle was then also in those com- 
munities, where a system of slavery predominated, as in 
Sparta ; while in Athens there remained until the close the 
memories and hopes of a national life. This has left its ex- 
pression in some of the noblest pohtical conceptions in ht- 
erature. And still it is in Athens that the national life of 
Greece is slowly reillumined. But the issue of the con- 
federacy was a disaster from which none were exempt. 
The citizens of Athens themselves were disfranchised. 
The separate communities sank into the condition of Ro- 
man provinces, and the ruin involved the whole, and the 
subjection of the whole to a foreign power. The termina- 
tion of the drama has been fitly represented by the his- 
torian, when the last great patriotic statesman of Greece 
went alone into the temple of Poseidon, to hail and wel- 
come death. The most complete recent illustration of 
this principle is in the German Confederation. The as- 
sumption of the rights of sovereignty by petty states and 
municipalities, each with its claim to independence and 
legitimacy, divided the people, and in its resultant weak- 
ness left it through centuries the ally or the subject to 
some imperial power. The mockery of the power of a 
great people was in the construction of the German Bund. 
Tt was the prop of weak and pretentious sovereignties — 
aere lords of division at home and agents of imperial pow- 
ers abroad. It led the people across every frontier as the 
antagonist of nations ; and France, and Italy, and Den 
mark, in turn, have felt its assault. It could not protect 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 327 

the people from domestic tyranny, nor avert foreign in- 
vasion. In the most immediate danger to the people it 
could not act ; while the Turks were before Vienna, Diet 
after Diet was held, but no common action followed. 
There are none of the great highways of Germany over 
which her own soldiers have not been compelled to march 
as the ally of a foreign power, and none of her capitals 
over which they have not aided to hoist a foreign flag. 
It is only after long humiliation that there comes the 
dawning of the unity and freedom of the German nation. 
There is ahke in ancient and modem history, the evidence 
how deadly a foe the confederate spirit has been; how 
close its alliance has been with slavery and with the pre- 
dominance of every selfish interest; how, through the 
division and resultant weakness of the people, it has 
opened the way to foreign supremacy and to imperialism, 
and how long has been the battle which the nation has 
had to fight. 

The nation attains the realization of its sovereignty and 
its freedom only as it strives to overcome this false princi- 
ple, and yet as its root is in a selfish tendency it is only 
at last overcome in the close of the conflict of history. 
The confederacy in itself has no permanence, but the evil 
principle, the bite of the serpent, remains, and in some 
sudden moment it may rise and strike at the life of the 
nation. With the people of the United States the conflict 
of the nation and the confederacy passed through a long 
period of years, until the character of the principle and 
purpose in each was to become manifest, and they were to 
meet face to face, and over a continent from its centre to 
♦•he sea their armies were to be gathered, and in a struggle 
tf life and death, not only for those who are, but for those 
who shall be, the issue was to come forth in the judgment 
of Him, with whom are the issues of eternal conflicts. 

On the postulate of a confederate principle, it was assumed 
that the people constitute a confederate association of sep- 



B28 THE NATION. 

arate political societies, that each of these is sovereign, and 
each has a separate, integral and continuous existence, 
being associated with the others in a formal agreement for 
certain defined ends and the securance of certain interests • 
and that from this joint agreement expressed in the stipula- 
tions of certain articles formed by each as a party with the 
others, there is derived the authority of the government 
and the powers of the people. The inference in logic, and 
the result in fact, was the attempted secession of one or 
several of these societies, when any deemed that it was 
justified to itself in the exercise of its sovereignty, and in 
the consequent maintenance of its continuous existence, — 
in necessary coincidence with the extinction of the organi- 
zation of the whole, which was regarded as only formal, and 
in which the separate societies were combined. There was 
assumed for each a sovereign and continuous existence, 
and an ultimate authority over its population, who were 
primarily constituted as the citizens of each society, and 
each could be conceived to exist without the others ; but 
the relation of the people in and of the whole was formal, 
and it could not be conceived apart from the separate soci- 
eties upon whose existence in their independence and sove- 
reignty and continuous existence it was thus conditioned. 

There has been in the history of no people the witness 
to a higher unity. The divine guidance of the people has 
nowhere had ampler evidence, and in the consciousness of 
the people it has been held in a purpose transmitted from 
the fathers to the children, in the faith of succeeding gen- 
erations. The unity of the people has been moulded in 
the unity of a history so perfect, that apart from it the suc- 
cession of events is a discord and not a development. If this 
unity be denied, the history holds no significance, and the 
people have acted with so long toil and sacrifice in a false 
masque, — a poor but fatal comedy of errors. 

The foundations were to be laid in a new world, not in 
the age of imperialism, when the Roman empire was the 



THE NATION THE ANTAGONIST OF THE CONFhDEEAOY. 329 

central power in the world, nor in the age of medievalism, 
when the power in the same centre was transferred to 
papal ecclesiasticism, but in the age of the coming cf the 
life of nations. It was the age of national development. 
Its gates were opened in the age of that protestantism 
which was formed in the struggle and endeavor of nations, 
against a universal domination whose capital was Rome. 
It was the national age of England, the age of her high- 
est development, the age also of Shakespeare, and Raleigh, 
and Bacon, and Milton ; in this age there was the begin- 
ning of the positive development in the history of the 
American people. There was the inception of the his- 
torical unity and historical life of America. 

The people, in the colonial period, was formed under one 
government — that of Great Britain; and all were con- 
stituted under one sovereignty, as they were comprehended 
in one colonial system. Through the years preceding the 
War of Independence, the colonies, which were the planta- 
tions of Great Britain, were in an integral relation to one 
power, and subject to one authority. The government 
of Great Britain was over and inclusive of the whole. 
The formal investiture of the colonies with certain sove- 
reign powers, was confined mainly to the administrative 
powers, which are necessary in the organization of civil 
society, that is, the order of the commonwealth. 

From England the people was to inherit those elements 
which consist with a common relation. There were only 
those forces, which tend to the community of men, and 
here was mingled with them no element of variance. 
There was an inheritance of one language and one lit- 
erature, and common manners and arts and laws. 

The War of Independence, while it cannot be strictly 
called a revolution, was in the development in its unity of 
the peoj)le planted here, and here to unfold its life. The 
separation from Great Britain was a single political act ; 
it was the act of the whole people, and involved the as 



330 THE NATION. 

sumption hj the whole of the sovereign tj, which before 
was asserted over the whole by Great Britain.^ It was 
occasioned by the- same single course of events. The peo- 
ple had been subject through their lives to the same for- 
tunes. Its complaint was of the same grievances, and 
it had suffered the same wrongs and endured the same 
humiliation. There was the same purpose animating the 
whole, and it advanced toward the same. end. The period 
of colonial dependence was succeeded by the independence 
of the whole. 

The action of the people was naturally, in the first in- 
stance, through the existent social forms, but it was none 
the less the action of the whole people. " The people acted 
necessarily in the organizations in which it stood, — as the 
town meeting, the county, the municipality, the common- 
wealth, — and its action must have been through these 
forms, unless all forms were obliterated in some social de- 
vastation ; but this action through the extant forms in this 
transition, instead of being conclusive of the separate po- 
litical sovereignty and continuity of each community as an 
integral political power, when considered in its political 
aspects, is wholly inconsistent with it. ^ 



1 " The association of the American people took place while they were colonies 
of the British empire, and owed allegiance to the British crown." — 1 Kent's 
Ccmm. 201. 

2 De Tocqueville inferred that the people and freemen of each township con- 
stitute the political integer, and that its existence is independent of the collec- 
tive people of the commonwealth. — Democracy in America, vol. i. pp. 40, 67, 68. 
Mr. Bancroft maintains the same position. — History, vol. ii. pp. 59, 60. See 
also Hurd's Law of Freedom, etc., vol. i. p. 405. "These views have been ex- 
pressed by them without sufficient reflection or examination, and are not correct 
in principle, nor sustained by our colonial records, nor by any adjudication of oui 
coarts." — Butler, J., in Webster v. Harrington, 32 Connecticut R. 136. The as- 
sumption of the town meeting as the integral political power, or the political mo- 
nad, is described as the merest fiction, and as destitute of foundation in both fact 
and law, and this is illustrated by a wide survey of evidence. The argument ia 
-onclusive against the integral political character of the township ; but there ia 
lore apparently to justify the inference of M. De Tocqueville and Mr. Ban 
roft, that the integral political power is resident in the township, than may b« 

tiled to maintain the same claim for the commonwealth. 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 331 

There is in its continuance the unfolding of a still 
grander and more imposing unity. The War of Indepen- 
dence, with its years of suffering and devotion and sacri- 
fice, was the war of one people. It was fought from its 
opening to its close before the inception of the Constitution, 
and with no formal constitution, but they " stood all to- 
gether, and they marched all together." They went forth 
to battle under one leader, and under him they won a 
common victory. The power of the whole was instituted 
in one Congress. The language it used in its official acts, 
spoke of " country and America." The names which the 
political power assumed, were the "Continental Congress" 
and " Continental Army " and " Continental money." The 
name "United America" was often repeated. The rela- 
tion toward other poHtical powers was that always of one 
people forming a nation, and the recognition by other na- 
tions was not of each community as a separate political 
power, but it was the recognition of the people as one na- 
tion. It was the organic people forming a nation that sent 
forth its ministers, and with it treaties were made and 
international relations were estabhshed. Thus its ministers 
were received by France as the ministers of the United 
States, and at the conclusion of the treaty made between 
the two governments in 1778, the King of France spoke 
to its ministers of " the two nations." The authority as- 
serted was of the whole people, and the delegates in the 
Revolutionary Congress proclaimed its power " in the name 
and hy the authority of the good people of these colo- 
nies." The Declaration of Independence was the act of 
the whole people ; it calls the Americans one people, and 
its salutation is to them as fellow citizens. There is in 
it the assumption of no separate rights, and the record 
of no separate wrongs. The Declaration in its conception 
transcends the spirit of any of these separate communities, 
and was beyond their separate grasp. It was by the whole 
people that the war was carried on, and victory was won, 



332 THE NATION. 

and peace was established for the people. There was iR 
these events beyond argument the evidence of the divine 
guidance of the people. And the witness to this provi- 
dential guidance of the people in the realization of the 
nation, was to be given by one whose words are more than 
those of an isolated individual. President Washington 
said, in his first inaugural to the people, " Every step by 
which they have advanced to the character of an indepen- 
dent nation, seems to have been distinguished by some 
token of providential agency." 

The subsequent circumstance of the deepest significance 
is that the people sought to realize its purpose under the 
articles of a confederation. It was the assumption of a 
confederate principle, although in the nature of thiags it 
induced inevitable contradictions; thus, while the separ- 
ate States are represented as sovereign, they are not so in 
reality, but the attributes of political sovereignty are with- 
drawn from them ; then also the articles are called the 
Articles of Confederation, but they are also described as 
articles of perpetual union ; the acts which were then per- 
formed under the articles were incongruous with a con- 
federate conception, and thus the Congress of the people 
proceeded to enact laws as if invested with positive pow- 
ers, and thus the great seal of the United States with its 
legend of unity was adopted ; and treaties were con- 
firmed by the Congress, in which the nation was bound by 
obligations to other nations, and the whole people was 
held by them ; under these articles also, — so far was 
the condition removed from an actual sovereignty in the 
separate communities, — in the highest issues, and those 
which involved the very being of the people, the ulti- 
mate determmation was with nine of the thirteen com- 
munities, and this formal political action was imperative 
over the whole. But the fact of the most enduring import 
is that these articles of confederation had no continuance 
but after a very brief period of confusion and disas'ter thej 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 333 

Pell away, partly tkrougli their inherent weakness, and 
partly because they did not correspond to the real consti- 
tution, and could not embody the real spirit and purpose 
of the people.^ 

There was formed by the people a national constitution. 
It was ordained and established by the people, and in 
the institution of a national government, " We the people 
of the United States, — for the United States of Amer- 
ica." It is called " the Constitution," and not, as before, 
" the Articles," as in a compact. The end which it places 
before it is a national object, — "to provide for the com- 
mon defense, to promote the general welfare, to secure the 
blessings of liberty to ourselves and our posterity." The 
ordination of the government is in a national legislature, 
whose laws are authority for the whole land ; and a na- 
tional judiciary, to which is referred the subject and ad- 
ministration of public law, and before which the separate 
communities in a conflict of rights appear by summons or 
appeal ; and a national executive vested in one person in 
the unity of the personality of the nation. It is the 
enumeration of national rights and of national powers. It 
is ignorant of and indifferent to the very names, and the 
number and the extent of the separate civil communities 
comprehended in it. 

The illustration of this history is in the necessary polit- 
ical development of the people. The formal argument in 
'^very phase admits no other conclusion, as in its course 
there can be traced no divergent event. 

1 President Madison sajs of the character of the confederation, after describing 
the Amphictyonic and Achaean leagues, which he represents as in analogy with 
it, " The inevitable result of all was imbecility in the government, discord among 
the provinces, foreign influences and indignities, a precarious existence in peace, 
and peculiar calamities in war." — The Federalist, No. xx. 

President Washington, who held the conception of the organic and moral 
bemg of the nation with a more profound sincerity and grasp of thought than 
any American statesman — certainly before President Lincoln — wrote to 
J jhn Jay, March 10, 1787, of " a thirst for power, and the bantling — I had 
liked to have said — the monster sovereignty, which has taken such fast hold oi 
the States individually." 



334 THE NATION. 

Firstly, The separate societies or commonwea.ltlis have 
each of itself no integral historical life, and there is no 
separate historical aim which may be apprehended in them. 
The whole historical development is of the people of the 
United States, and upon the people its work has been 
laid. Apart from the people of the United States, and 
apart from a relation in and to that, history is ignorant 
of these separate communities. They have no separate 
ground in history. 

Secondly, The object and end toward which the people 
has moved, has been the reahzation of a common end, and 
that the end of the being of the nation, the realization of 
freedom. The aim has been to place beyond all aggression 
tie inalienable right of personality, the freedom of con- 
science and of thought, and to embody in more enduring 
institutions the rights of man ; and this in the course of 
the people has been increasingly apparent. The end was 
not the false and negative conception of what is called 
freedom, which was to exist only in their relative indepen- 
dence in respect to each other, a freedom of ahenation and 
division, but there was the unity of a moral aim, and for 
this the toil and conflict and sacrifice of years have been 
offered and this has been given to the people. The 
immortal words in which Washington was called by the 
Continental Congress to the head of the Continental Army 
were, " to command all forces raised or to be raised for the 
defense of American liberty." 

Thirdly, The societies, with the interval of a brief and 
most significant period of transition, have existed under a 
positive national constitution. It is a constitution which 
proceeds from the political people in its unity. The su- 
preme law is the assertion necessarily in its organic char- 
acter of the sovereign political power. The constitution is 
the supreme law. The names of the separate societies are 
unknown to it, and there is no recognition of a separate 
sovereignty, and no assumption of a divided sovereignty, 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 335 

The words are not in it, and it is only a school which 
claims the specious pretense of a literal construction, that 
reads of State sovereignties between the lines. The form 
in which the change or amendment of the Constitution may 
be effected, precludes a separate sovereignty in the separate 
communities. While it can only be effected in a form whicn 
is estabhshed, yet the act is ultimate and the whole is sub- 
ject to it, but no sovereignty can consist with this ultimate 
subjection, whether the conclusion in its procedure be 
determined as a poHtical act, by a pohtical majority of one, 
or of two thirds. 

Fourthly, The physical power, the organized might of 
the people, is formed by and in obedience to the authority 
of the people as a whole. It is organized as a national 
power. And as war is the act of the nation in its en- 
tirety, it is also beyond the capacity of a separate society 
to declare war or to conclude peace. The mihtary oath, 
which every officer registers, is, " That he owes faith and 
true allegiance to the United States, and agrees to main- 
tain its freedom, sovereignty, and independence." 

Fifthly, The separate societies have no existence each as 
a separate society in international relations. The capacity 
to recognize other nations, and to be recognized by them, 
to form treaties and enter into the relations defined by 
international law with them, is the note or the crucial test 
of the sovereignty of a political people, and in its formal 
and external relations a positive test, but there is for this 
action no capacity in the separate societies, and this power 
has no existence in them. 

Sixthly, There have been certain of these societies, cor- 
respondent in every actual capacity, and in their character 
and organization to the other communities, and invested 
mth aU their powers and immanities, which have been 
constituted by the nation, that is, by the people as a whole. 
This is the condition of an increasing number of them. 
They have been formed by the formal act and enactment 



836 THE NATION. 

of the nation, and to assume for these an original and in« 
dependent existence, and an actual sovereignty, is a contra- 
diction. It places the created above the creator. 

Seventhly, These societies are so constituted that citizen- 
ship exists in all its rights and powers in the whole, and 
the citizens of the United States are the citizens of every 
State. It is one political body, to which the members are 
individually related. There is no expatriation on passing 
from one society to another ; and no naturalization is requi- 
site in the change from one section to another, and there is 
in no separate society the power for such action. But to 
apprehend a State as existent, apart from the people com- 
prehended in it, is an abstraction, and can appear only in 
the vision of poHtical speculations. 

Eighthly, The separate societies have not the constituent 
elements of poHtical power. The rights which appear in a 
national sovereignty and the correspondent powers, are not 
possessed by them. They have not separately the capaci- 
ties of an independent poHtical people. Their construction 
is in a civil system, and they are without the conditions of 
integral poHtical supremacy. Whatever may be the infer- 
ence of speculations and the course of legal hypotheses, this 
is the fact of their condition. 

Ninthly, They have no external relation apart from the 
United States. It is the latter alone which is manifest in 
an external sovereignty. They are constituted in a form 
necessary to internal order and administration, and have 
none of the indices of power in which a nation appears in 
its external sovereignty, maintaining its own relations, and 
acknowledging on earth no external control beyond itself. 

Tenthly, The separate societies have not the physical 
unity which appears in the being of an independent nation. 
They have in their existence no conformance to its geo- 
graphical law. They are defined by no natural and nc 
historical boundaries, but every natural and historica. 
boundary is erased in their interrelation. There are none 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 337 

of those lines that demark the existence of a separate 
people on the earth. In the collision of events, and the 
conflict and migration of races, and the crush of the forces 
of history, which are mightier in their duration than those 
of physical nature, if a separate existence was assumed 
they would become in the first shock so changed as to lose 
their identity, and history could not recognize them. 

But while the argument in its conclusion allows no di- 
gression, and has in the records of scarcely any years in 
the existence of a people, a parallel in height and full- 
ness, yet an argument is only illustrative, and in the 
presence of the being of the people, and in the realization 
of history, there is presumption in any argument. The 
evidence is in the being of the people, and from its con- 
scious unity there is no appeal, and it allows no inquiry. 
If there be not the consciousness of the unity and sove- 
reignty and freedom which subsist in the organic being of 
the people, then all argument is empty, and all inquiry is 
vain. The realization of history can be determined by no 
pohtical abstractions, and events conform to no individual 
preconceptions. Facts do not defer to theories ; in the 
strong image of the poet, "words are men's daughters, 
but God's sons are things." 

The principle in which the character and relation of the 
separate civil societies are defined, whatever its form, nec- 
essarily affects the foundation of society, and is constructive 
of its whole process. If there be assumed for each a 
necessary and continuous existence, then each is a self- 
subsistent power, and then the bond which holds them as 
collective, that is, as a combination of certain separate 
and self-subsistent societies, is formal, and the principle 
in which their relation is formed must be necessarily the 
confederate principle. To maintain then the continuous 
union of each with all, and to compel each to persist con- 
tinuously in connection with another or with aU in this 
formal relation, would not only be destructive of the sove- 



338 THE NATION. 

reignty and independence presumed in each, but when 
this compulsion was made against its clearly and persist- 
ently expressed intent, it would become the institution of 
human society in force. It would involve in human society 
the maintenance through physical force of a formal order, 
and not the existence of an integral or organic and moral 
being. 

The principle which is the necessary postulate of the 
confederacy has been defined clearly, and has been held 
strenuously. There was nothing vague in the attempt at 
secession, nor in the premise on which it proceeded. It 
was the assumption of the sovereignty and independence 
and continuous existence of each separate community, and 
the act of secession was the necessary sequence as each or 
any deemed itself justified to itself by the grievance it bore, 
or by the advantage it was to secure. The secessionists 
regarded themselves primarily as the citizens of these sep- 
arate communities, and subject to the ultimate authority 
of each, and became confederate in and for the protection 
and furtherance of a special interest, which was assumed 
as the immediate object. 

The confederate principle which was manifest in the 
denial of the organic and moral being of the nation, could 
appear only as a destructive force. It had its necessary 
sequence, as it sought its realization, in an attempt at 
the dissolution of the whole. 

The conflict of the confederate principle with the nation 
has been borne on through all the years of the people. 
There are memorials and declarations, and enactments and 
proclamations, and judicial decisions and state papers, 
which are framed in conformance to the scheme of a con- 
federacy, or formed in the realization of the being of the 
nation.^ And still in the devices of parties and the expe- 

1 There is a force often imputed to some textual statement, in which it is so 
construed as to compel history, and thus a notion or dogma counter to all reality 
may be built upon some political memorial, as the phrase ot a state paper 
There i? an illustration of this in the speculations of Mr. Calhoun. An «rticlf 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 339 

dients of priests, and the forms of legists and the opinions 
of jurists, the conflict appears. The construction of gov- 
ernment has sometimes been conceived to exist in a com- 
promise, but the fact has been their inevitable conflict. 
As in their conception each involves the negation of the 
other, there has been in history their incessant antagonism. 
As the nation is formed in its unity in the will of God in 
history, and is manifest in the divine guidance of the peo- 
ple, and advances in its continuity in the transmission of 
its purpose from the fathers to the children, in the fulfill- 
ment of the vocation of the whole people, and exists in the 
realization in its organic and moral being of a moral order 
in history, so the confederacy denies the unity and con- 

of the Confederation reads, " each State retains its sovereignty, freedom and 
independence, and every power, etc.," and thus it is assumed as the reality in 
history that each State or society possessed a real sovereignty and independence, 
and all the political powers involved in a sovereign and independent political 
being. There is then maintained in strict consistency and as the immediate 
inference of this postulate, the necessary and continuous existence of each State 
or society as a political power, and having all political powers immanent in the 
political body. It is on the phrase of a state document that the whole fabric is 
constructed, and for all time. — See Calhoun's Works, vol. i. p. 148. The original 
sovereignty is not the creation of a legal formula, since it is itself the power which 
can affirm its will as law, and thus in France, for instance, at one period, the 
most various constitutions, each having the authority of law, succeeded each 
other; but it is not presumed that the actual condition changed with each state 
document, that appeared, as it was said, so rapidly as to form a periodical lit- 
erature. 

Mr. Hurd says, " Declaring a state of things does not make it. Since no dec- 
.aration of sovereignty can be more than evidence, it may as such be compared 
>'ith other testimony. The declaration of July 4th asserted the colonies to be 

free and independent states.' The accompanying declarations of an existing 
condition of private persons that ' all men are created equal, etc.,' all men have 

inalienable rights,' did not determine any private conditions, even though 
*lie state of private persons is the effect, and not like sovereignty, the cause 
of law." — Law of Freedom, etc., vol. i. p. 407. 

" The possession of sovereignty, being a fact and not an effect of law, what- 
ever written memorials of the rightfulness of any national sovereignty may 
exist, they can only proceed from itself, and they can only be taken as historical 
evidences of its existence ; not as law controlling that possession of sovereign 
power which they assert And the authors of these declarations must always 
■>€ supposed to have the right to substitute ot.hers of different term and of equal 

uridical authority. There can therefore be no written constitution of govem- 
•nent so authoritative in its nature or ^ts expression as to determine the rightful 
M>vcreignty, the rightful hoiders of ttat rightful supreme power." — Ibid, vol 
b p. 396. 



340 THE NATION. 

tinuity in the being of tlie organic people, and assumes 
the origin and foundation of society in the convention of 
men, and its construction in the combination of separate 
interests, and its continuance in the dictation of interests , 
it is conditioned in the law of a temporary expediency, 
and as a power in the exclusive possession of a class or oi 
a race, and for the furtherance of separate and spec j a 
ends. 

It cannot be too often repeated that the War was not 
primarily between freedom and slavery. It was the war 
of the nation and the confederacy. 

The nation and the confederacy meet at last in mortal 
conflict. It is the battle of the nation for Hfe. Confedera- 
tism, in its attack upon the nation, is in league with hell. 
It severs the children from the fathers. It erases the 
sacred memories which are their common heritage. It 
passes over violated oaths. It rejects a law of righteous- 
ness in the realization of society. It denies the divine 
origin of humanity, and the sacred rights it bears in its 
divine image. It refuses the foundation of its unity in the 
corner-stone, which is the "foundation which is lying." 
It forms its alhance with slavery, and that dam got 
its brood. It gathers to itself the pride, the treachery 
and infidelity of men, the worship of money, the vulgarity 
of fashion, and the distinction of caste. It collects its sup- 
porters out of all parties and factions and churches and 
sects. It is the conflict of history, the battle of Judaea with 
Babylon, which sweeps through all the centuries. In its 
awful significance, it can find but an imperfect expression 
in the symbols of human thought. It is but faintly imaged 
in the fight of the eagle and the serpent. It may never 
wholly cease until the end of history. The confederacy is 
the embodiment of the evil spirit, in which there is the 
destruction of the being of the nation, the organic and 
moral unity and continuity of society, and the subversion o^ 
the whole to selfish ends. It strives to subvert the natioi. 



THE NATION THE ANTAGONIST OF THE CONFEDERACY. 341 

to serve its end in tlie perpetuance of slavery, or the pride 
of birth, or hatred of race. It turns from defeat on the 
field to cheat men with its Hes and its frauds. It retreats 
slowly from every hold. There is no people but has felt 
the poison of its fangs, and none but has been deceived and 
seduced by its sorceries. The nation in the realization of 
its being has always to contend with it, and in the sub- 
jection or the resistance to it is the sign of weakness or 
of power. The nation is to bear the conflict to the close 
of history, as it is to strive for the realization in its moral 
ftilfillment of the life of humanity, to which every advance 
in its history will call it, and of which every new age may 
be the revelation, as the days of the Son of Man. 

In every age the character and result of the conflict be 
comes more clear, as its issue is revealed in the judgment 
of history. It is not alone the conflict of ideas, for it is in 
another than an intellectual arena, and reaches the very 
passion and contradiction of life. It is not alone the con- 
flict of freedom and slavery, excepting only as freedom is 
realized in the realization of the being of the nation, and 
slavery, as divisive or destructive, is to be overcome by it. 
It is the nation contending for its unity, which is in God, 
and for its continuity, in which the generations from the 
fathers to the children bear its holy purpose, and for the 
frjfillment in humanity of a law of righteousness. The 
nation was battling for her very being, as she rose to vic- 
tory, from the fields of Vicksburg and Gettysburg and 
A.tlanta, and the lines befoire Richmond. 



CHAPTER XVIII. 

THE NATION THE ANTAGONIST OF THE EMPIRE. 

The nation has its immediate antithesis in the empire. 
The nation is formed in the freedom of the people, as an 
organic whole, and it comprehends the whole in its action 
and end as a moral organism ; the law- of the empire, or 
the imperial principle, is the formation of the order of 
society in the subjection of the whole to an individual or 
a separate collection of individuals. 

In the empire, there is strictly the realization of the 
freedom of only one or a few. The will of the people 
has no expression in it, and there is substituted in its stead 
the will of an individual, or a class, to whom alone action is 
allowed. The government is not of the people, but apart 
from the people. They are the subjects of it, but are not 
participants in it, and have no place in its positive deter- 
mination. The empire allows no real expression to the 
will of the people, but only to an individual or a family or 
a class. Thus its government becomes repressive, and 
tends to efface the conscious life and spirit of the people. 

The nation is in identity with the people, but the empire 
identifies an individual or a class, with the })olitical body 
Its language is always in the phrase of Louis XIV. The 
ruler is not regarded simply as a member of the poHtica 
body, but is himself the state. There is no law and no 
power beyond his individual authority ; there is no voice 
except his individual proclamation, and no rights beyond 
his individual rights. The public good is not the imme- 
diate aim, and the common welfare is not an object in itself, 



THE NATION THE ANTAGONIST OF THE EMPIRE. 343 

nor the well being of the people the end of the whole, 
except only as it goes well with him. 

The government of the empire is not in the will of the 
organic people, expressed through the organic powers of 
the political body, but the sole authority is the private 
judgment and the executive act of the imperator. It is a 
necessary absolutism, and the law of the empire is con- 
cluded in the Roman aphorism, quod Principi placuit, legis 
habet vigorem. 

The empire may conform to the physical being of the 
state, and has the conditions of an external order, but not 
of the development of the nation as a moral order. There 
is the action only of an imperial will, and its process is an 
imperial edict. There is in the people no evocation of a 
moral spirit, and no education of an individual character 
in them. The capacity of each is not called forth, and his 
powers are not awakened ; he is in no immediate relation 
to the state; he does not act in the determination of its 
course ; he cannot realize in it his own purpose, nor strive 
for the embodiment in it of his moral aim. The life of 
the state is withdrawn from him, and its conduct is secret 
from him ; he cannot comprehend it, as in his individual 
existence he is not comprehended by it. There is thus 
no development of the individual personality, no moral life 
and spirit in the people. This appears in China, which is 
perhaps in all its aspects the most complete illustration of 
the empire. In China, says Hegel, "• the ground of 
moral action is entirely obhterated. Such is the fearfiil 
condition of things in regard to responsibility and non- 
responsibility ; all subjective freedom and moral account- 
ability and concernment in an action is lost sight of." * 
The consequence is seen in the subversion of moral re- 
sponsibihty. In its criminal code there is no ind\ndual 

1 Hegel, Philosophie der GischicMe, p. 156. 

" Die autokratie wird allerdings ausgeschlossen, durch die Representativ« 
rerfassung, und durch den Begrifl des Staats selbst." — Rofhe, Theologisch* 
Eikik, vol. ii. p. 126. 



344 THE NATION. 

accountability recognized for crime, and there is a confii- 
sion of the moral judgment and indifference to moral dis- 
tinctions. In its civil system, punishment is not neces- 
sarily imposed upon offenders, but is a formal satisfaction 
of the law. Thus for instance, one who has committed a 
crime to which the penalty of death is affixed, and is con- 
demned, may, and with shght expense almost always can 
find one who will suffer the penalty in his stead, and the 
law is then satisfied, no regard being had to the exposi- 
tion of justice, nor in the infliction of punishment, to indi- 
vidual guilt. Thus also if a resident on a certain street 
commits a certain crime, the penalty is imposed on the 
street, and all the houses, for instance^ are demolished. 
There is thus the destruction of the moral life of the peo- 
ple, and there is no consideration of the individual char- 
acter. There is thus in the empire no wide and complex 
life, and no diversitude in thought and action. There is 
nothing of that wealth in art and hterature and laws, 
which appears when the energies of the people are called 
forth with the fresh and free development of the individu- 
ality of each. Its life thus has no depth, and its action is 
mechanical, and there is only a wide and superficial uni- 
formity. In its best epochs, the empire can present only 
a few isolated figures, — the greatness of a solitary indi- 
vidual or a family which are lifted far above the people, 
and their greatness is transient. This desolation of the 
life and spirit of the people in imperialism is reflected in 
some of the darkest pages in history, and where the gloom 
is deepened by the greatness of some sohtary form or some 
line of rulers in its lonely exaltation. The annals of Taci- 
tus disclose the condition in Rome, when the conviction 
of individual obligation, and of the authority of law, and of 
continuity with the past, and of the relations of mcE 
was lost, and there remained only the sense of subjectiou 
to the will of a single individual which was external to the 
people. 



THE NATION THE ANTAGONIST OF THE EMPIRE. 345 

The tendency in imperialism is net only to undermine 
the moral life and spirit of the people, in its immediate 
action in the subversion of personality, but also to subvert 
it as it is formed in the relations of life. In Rome, the 
decay of the family was in immediate connection with the 
merging of the nation in the empire. The object is not 
the strengthening of the sacredness of the family relations, 
which are in correlation with the nation in its moral being, 
but it aims at the solitary grandeur and permanence of a 
dynasty. 

The empire tends to obhterate, when it cannot identify 
with itself, the historical memorials which have gathered 
in the history of the people. It seeks to substitute for 
them the associations and traditions of a dynasty. The 
thought of the people is diverted from its achievements in 
the past, and there is inculcated only the sense of depend- 
ence upon the existent power. There is in this con- 
dition no spirit through memory to inform the mind 
of the people. There is nothing also to incite their fore- 
thought. In this dependence there is no longer robust- 
ness of spirit or moral hardihood ; and in the empire the 
people are regarded, and through its forms are addressed, 
as children. 

The progression of the empire is in contrast with the 
law of development in the integral unity of the nation. 
It tends to increase by aggregation, and its extension is in 
its material aggrandizement. There is no unific force act- 
ing from within to shape and determine the whole, but only 
the decree of the imperator, which is an external affair. 
The sovereignty of the people forming the nation is limited 
n its own organic law, and through its subsistence in the 
rganic whole ; but in the assumption of an individual will 
iS in identity in its domination with the state, there is no 
necessary limitation and no restriction to the widest circle, 
to which this will may extend its authority. WhDe the 
sovereignty of the people in the natim presumes the or- 



346 THE NATION. 

ganization of the whole people, the organization of the 
empire is established in the edict of the imperator. The 
pale of the empire is the boundary of the power affirmed 
in th3 imperial decree. The tendency of imperiahsm is 
thus always to pass the natural and historical boundaries 
by which a people is described, and it becomes an accumu- 
lation of peoples, and is formed not in an organic relation, 
but held by a formal and external bond, which is the impe- 
rial decree. This was the career of Rome in the empire. 
It did not intend so vast or so remote a conquest; but 
losing the consciousness of the moral unity of the nation 
in its integral and historical life, and apprehending only a 
formal relation in the law or edict of the empire, it was 
borne on in the accumulation of peoples and lands under 
its authority, until overpowered by the mass it sunk be- 
neath its weight and tumbled in ruins. The same impulse 
appears in the course of England in its empire in India. 
The limit to its sway is constantly being drawn only to be 
erased. Wellington said it was the Indus, but it was long 
since passed, to move on to Peshawur and on to Burmah, 
and to secure the possession obtained which is held by no 
cohesive power, it is still hurried on with alarm at external 
aggression. When once the will asserts its own individual 
power as a domination in the world, it seems, in the 
consequent evil, to be emptied of its own freedom, and it 
moves as if impelled by some fate. 

The destruction of nations thus may be traced in this 
loss of their moral unity and freedom in the transition to 
empire. The decline and fall of Rome appears as it 
ceases to be a nation and becomes an empire. Its imperial 
power had always certain material attractions, and in it?' 
inception it was not without certain advantages ; it insti- 
tuted a more perfect civil order ; it terminated social wars 
which had long continued ; it brought an immediate secu- 
rity, and there was a check upon the frauds and corruptions 
of a praetorial and proconsular administration ; it relievec 



THE NATION THE ANTAGONIST OF THE EMPIRE. 347 

the people from the agitation and concern in public affairs ; 
but there was the decay of public spirit, and the beginning 
of those tendencies which were to effect in their gradual 
course the decline in which the acquisitions of the centu 
ries of its national development were to perish. The powef 
which once in its discipline had been irresistible, at last 
could defend no section of its territory from the inroad of 
a single tribe out of the many once embraced in its con- 
quest. As its public spirit was destroyed, and its marvel- 
ous organization was broken, and the energy which had 
moulded and pervaded its action was undermined, there was 
in imperialism no creative force to renew it, and no recu- 
perative strength to overcome its decay. The same conse- 
quence with the advance of imperialism may be seen in 
Spain. The record of her imperial dominion under Philip 
II. is told in the proud story of the chronicler of that day ; 
"he held in Europe the kingdoms of Castile, Aragon. 
and Navarre, those of Sicily and Naples, Sardinia, Mi- 
lan, Roussilon, the Low Countries, the Balearic Islands, and 
Franche Comtd; on the western coast of Africa he held 
the Canaries, Cape Verde, Oran, Bujiya, and Tunis ; in 
Asia he held the Philippines, and a part of the Moluccas ; in 
the new world the vast kingdoms of Peru, Mexico, Chili, 
and the provinces conquered in the last years of Charles 
V. with Cuba, Hispaniola, and other Islands." But this 
enumeration of so vast an apparent material power is the 
preface to disaster, and the beginning in Spain of centuries 
of humiliation. There is a more recent illustration of the 
same tendency in imperialism in Austria. In the long roll 
of soldiers whom Francis Joseph saluted on the field of 
Sadowa, as his faithful children, there was the German, the 
Itahan, the Magyar, the Croat, the Slovak, the Pole, thft 
Rouman ; but in this multitudinous mass, there was no or- 
ganic unity. They were the representatives on the field of 
only a vast aggregate of peoples and states, and the bond 
which held them was formal, and whether that bond be in 



348 THE NATION. 

a confederate compact or an imperial edict, it can have nc 
unific force. 

The empire is formed in the subjection of peoples and 
races. It thus embraces those in the state who are isolated 
from the state. It is a dominion, and is without the 
conscious unity and aim of the nation. The nation may 
break down the division and antagonism of races, in a moral 
order and organism, but this principle is wanting in the 
empire, and thus it can only embrace subject races as in- 
ferior. It is this which tends always to bring the empire 
into alliance with slavery. The government is not formed 
in the institution of rights, since no rights are recognized 
beyond the imperial will, nor in freedom since only the 
will of the imperator is allowed freedom, nor is it in the 
protection of the weak and the poor, but it is the sign of 
their subjection to the strong. It comprehends the people 
not as integral in the state, but as masses and fragments, 
and sects and parties and races, and in these conditions 
they are subject, and the government is an external affair. 

The empire, since it is a government external to the 
people, tends to form an external hfe. The moral strength 
and energy of the people is not called forth, and there is 
the suppression of their spirit. There is a uniformity of 
action, and the people move mechanically, and the gov- 
ernment is not a power in which the people acts. It is 
thus that the people in the empire are withdrawn from 
actual life by amusements, and are to be diverted by shows 
and pageants gotten up for them, and having the attrac- 
tion of an external magnificence. 

As in the empire the government is isolated from the 
people, the people in their isolation become at length no 
longer affected by it. Their lives become independent of 
it, and it is powerless to influence their actual condition. 
There is thus in the decline of Rome, in the empire, no 
fiact more sad than that the actual condition of the people 
is unchanged under the most brutal and sensual, and the 



THE NATION THE ANTAGONIST OF THE EMPIRE. 349 

most humane and gentle of rulers. It remains the same 
under Aulus Vitellius, and M. Antoninus Aurelius.^ 

The empire creates a false conception of human power 
and human greatness. There is the assertion of power not 
in the service of humanity, but in separation from it. In 
the elevation of an individual or a class, the distance 
between them and the people is widened, and there 
gathers about the imperial presence a distant grandeur 
which removes it from the common condition of human- 
ity. The dignity of the empire is sought, not in its moral, 
but its material power. It is estimated in the extent 
of its dominion, or the vastness of its possessions, or the 
nimiber of its armies, or the strength of its armament. 

There may be in the empire, in its immediate inaugura- 
tion, an apparent advantage ; it may enable men to devote 
themselves more exclusively to the pursuit of their pri- 
vate affairs and their private ends ; it may relieve them 
from attention to public duties and the direction of public 
events; it may introduce a more regular routine, and 
more uniform method and system in the public adminis- 
tration ; it may display a greater external splendor, and 
construct vast works of public utility ; there may be a 
greater care for the physical condition of the people ; but 
these may be connected with the degradation of the spirit 
of the people, and there are in these no elements of polit- 
ical permanence. The traces of the possession of England 
by the Romans, under the empire, still may be found in the 
almost obhterated ruins of the bridges, and roads, and pub- 
he works, which they constructed ; but it was in the com- 
ing of a power which sought to awaken the spiritual life 

1 There seems, in the fate which instead of freedom is the principle of the 
empire, the reflex of the lives of tne people in the life of the individual im- 
perator. Gibbon says, " Such was the unhappy condition of the Roman emperors, 
that whatever might be their conduct, their fate was commonly the same. A 
life of pleasure or virtue, of severity or mildness, of indolence or glory, alike led 
to an untimely grave, and almost every reign is closed by the same repetition cf 
treason and murder." — History, etc., vol. i. ck 12. 



350 THE NATION. 

and energies of men, and wrought in the common people; 
that there was the elements of an enduring strength. 
There may be in the empire, also, works of great excel- 
lence in literature and art ; but these will more often have 
had their root in some earlier period of national energy, 
and the creative power in all literature and art can appear 
only in the development of a native strength. There 
may be, also, a greater civil code, although instituted from 
the precedents formed more often in an earlier period ; 
but this is the condition of the civil corporation, and can 
have only the attraction of an external system. 

The result of the empire is not always the creation of a 
vast or permanent material wealth. It has been said that 
the empu^e creates wealth, although it destroys credit. The 
latter certainly follows, since the people cannot ascertain 
the intent of the ruler ; and the secret course of the gov- 
ernment gives rise to distrust and foreboding, and business 
enterprise is checked, and men wiU not risk large under- 
takings. But the empire does not create wealth. It does 
not stimulate human activity, nor incite the thrift and fore- 
thought and shrewdness of the people. The people in the 
empire are not rich. There is greater inequality of for- 
tune, and wealth becomes useless in the hands of the few, 
and the poverty of the mass is in contrast with the vast 
riches of a few individuals or families. In Great Britain 
the increase of pauperism and the disappearance of the 
yeomanry — that is the larger number of proprietors — 
has been in proportion to the accumulation of lands in 
the possession of a few. In Rome, under the empire, the 
nobles and farmers of the revenue were rich, while the 
people were poor. " They fight," said a tribune, " to 
maintain the luxury and wealth of others, and they die, 
with the title of lords of the earth, without possessing a 
single clod to call their own." 

The condition of the people in an imperialism is no. 
one of happiness. In the midst of the external power 



THE NATION THE ANTAGONIST OF THE EMPIRE. 351 

of imperial Rome, there was in the people no satisfaction 
of the spirit. This exists only in the conscious energy, — 
the freedom of the people ; but in the empire there is the 
depression of the spirit. There is no comprehension of a 
moral end. The imperial government, if it acts in respect 
to the people, acts only in doing what is good for them, 
while in the nation the individual is called, in its organic 
and moral being, to act in the realization of that which is 
in itself good. 

There is in the empire the creation of a love of power 
for its own sake, and of domination for itself. It is the 
view of powers and principalities. The people exist for 
the government, and not the government for the people. 
The former is not the servitor of the people, but the people 
is only its instrument, — the means for its end. It is 
thus that it is only in its inception, or in certain transient 
intervals, that the " empire is peace," and the tendency of 
mere power acting itself out is to impel the people into 
war. 

The influence of imperialism, in the subversion of the 
freedom of the individual personality, tends to induce an 
impression of fate. The people when it acts, acts in 
an order which is external to it, and mechanically and 
bhndly, as if impelled by some external power, and not in 
the conscious determination of men. There thus arises a 
sense of incapacity in the presence of the evils weighing 
upon it. There is the want of responsibility in respect to 
them, and as the people is excluded from public affairs, the 
decay of public conscience follows, and there is no energy 
nor effort toward the reform of abuses or the removal of 
wrongs. The government, in the destruction of the fr-ee- 
dom of the individual person, is led to invade the sphere of 
the individual, and to assume the immediate conduct of life, 
destroying all individuality, and determining the vocation, 
die home, the marriage, the work and rest of men. The 
government also tends to become a mere system of police, 



352 THE NATION. 

— although as in its civil system its police may be very 
highly organized, — since in its isolation from the people, 
in order that their course may not also become secret from 
it, it has to set spies over them, and gradually comes tc 
regard them with suspicion and distrust. There is a ten- 
dency also to regulate life by a formal and artificial stand- 
ard, to introduce some scale of virtues to denote the relative 
excellence of deportment, and the reward of virtue is in 
some ribbon or prize, and the periods of life, as of marriage, 
or rest from labor in age, are assigned in conformance to 
some uniform and external scheme of notation. It is thus 
in the empire that life becomes superficial and frivolous, 
and men are diverted with toys and playthings, as in 
China. Then the order of the state becomes mechanical, 
and this is the character of administration in China, with 
its competitive examinations, where political trusts and civil 
ofiices are assigned by a graduated scale in a pedantic sys- 
tem. It is thus also in the empire that there is the absence 
of all event in their history, and there is in the people an 
apathy, and in their long chronological records only a 
monotony. The tendency of imperialism has thus always 
been, to induce a fatalism. 

The nation may exist in some transient period, through 
confederate or imperial forms,^ but their characteristic, if 

1 In Russia there has been, with an imperial form, the advance of the people 
in the development of a national life and in freedom; but in its imperfect devel- 
opment the immediate danger to civilization is in the identification of the state, 
with the physical power of a race. In France, the imperial policy has been in- 
volved with constant contradictions. It established in universal suffrage the 
strongest guaranty of the rights of the people, and in its constitution, says 
Bluntschli, " full deference is given to the majesty of the people of France, as the 
source of the power of the state, the legislative body is made immediatel)' de- 
pendent upon its confidence, and the imperial power derived from its will." The 
title of the emperor is " par la grace de Dieu et la volente nationale, Empereuf 
des Francais." Its strength also has been in holding through imperial forms the 
conception of the nation, and its disaster has been in its later abandonment of 
it, as in its policy in Mexico and in its later course in Italy. In England th* 
tendency in imperialism is more apparent. Its sympathy, Michelet says, iti 
"grosses mitgefuhl," was with the confederacy. Its main alliance in this ag« 



THE NATION THE ANTAGONIST OF THE EMPIRE. 353 

the nation does not fail in its integral organic and moral 
power, is the lack of permanence. The nation has always 
to contend with them and to meet them sometimes in secret 

is with the empire of the Turks, and with an historical fitness, but with no coh- 
Bciousness of its propriety, it received the Sultan at a banquet, at the expense 
of the Indian administration, and at a table covered with the plunder of Rajas' 
palaces. The influence of imperialism may be traced in the increase in it of 
Roman ecclesiasticism, and in its literature not more in the open avowal of its 
old men, as Mr. Carlyle and Mr. Ruskin, than in the more than pagan fatalism 
of its younger men. It has built an empire in India, whose policy has been to 
crush every germ of national spirit in its native populations ; and as the national 
spirit in England, in the defect of moral strength, has diminished, the power in 
India has been held as the power in a race, and that race the English; in its In- 
dian administration it has had no power to overcome caste, since its own gov- 
ernment is imbedded in caste; it has degraded the people, and while under 
Moghul rule, the highest offices in the army and the state were open to them, all 
participation in the government has been denied them under English rule ; it has 
destroyed the physical condition of national well being, in a varied industry, 
instead of encouraging this as a securance against famine or accident, as in 
Orissa it suppressed the salt manufacture, which had existed for ages, in order 
to swell British revenue, and in the single failure of the rico crop, there was noth- 
ing for the people to fall back on ; in its constitutional formalism it established a 
system of civil justice, which a people, before prompt to punish crime, found so 
alien that they preferred to submit to crime rather than the infliction of the civil 
system ; in its own action it found in the superstition of ignorant Sepoys its in- 
strument, with which to send them to meet death; in its contact with a people 
from whom has sprung in literature the speculative hymns of the Vedas, and 
the delicate purity of Kalidasas verse, and the subtle metaphysical contemplation 
of the Maha Bahrata, and which in art has filled India with cities of architecture 
so imposing; it has not sought to develop the spirit of the people, but to crush 
and deface it. Thus under English rule, while it may conceal a real weakness, 
there has been an apparent increase in Hinduism, and a more lavish consump- 
tion of gold on its idols; and even Mohammedanism has increased under it, but 
the latter has come to discern elements of peril, only in the advance of Rus- 
sia, while England's relation toward it is regarded as one of indifl^erence. In 
its foreign policy it left Denmark, when every higher principle would have led 
it to sustain it; it might fight for the independence of Belgium, which is more 
integral to France than Scotland or Ireland to England, and whose independ- 
ence, as R. von Mohl says, in its origin is laughable, since this is an outpost for 
itself on the continent; it might fight to prevent the independence of Egypt, 
since this is on the way to its Indian empire; it opposes a vast work, of conti- 
nental beneficence, as the Suez Canal, and the most efiectual check to the slave 
trade, with secr«t and bitter diplomacy. The measure of reform in its suf- 
frage may tend to check its imperialism; but its main characteristic is the 
incapacity to deal with the evils which it recognizes, in its suffrage, and educa- 
tion, and lease of land, and military organization. There seems tn be no con- 
sciousness of responsibility in the people for them. The characteristic, of itf 
policy is the destitution of conscience. "In the eyes of her people," says M. 
23 



354 THE NATION. 

and again open alliance, and in many disgtiisements ; it is 
not on a single field, nor in a single age that the conflict 
is over. The close of the history of two of the great na- 
tions, in the ancient world, is the warning of the evil. 
The Hfe of the nation perished, — in Greece, in the con- 
federacy, in Rome, in the empire. The nation has always 
to contend with the dissolution of a confederate principal, 
and the domination of an imperial principal. 

De Tocqueville, " that which is most useftil to England is always the cause of 
justice, and the criterion of justice is to be found in the degree of favor or < 
lition to English interests." 



CHAPTER XIX. 

THE NATION THE INTEGRAL ELEMENT IN HISTORY. 

The nation is the integral element in history. It is 
as old as history. The phrase which describes " the new 
doctrine of nationaHties," has scarcely a superficial justifi- 
cation. 

The process of history is a development in the reahza- 
.on of the moral order of the world. There is in it an 
organic unity and growth, which is the condition of its 
continuous life. There is the unity of the divine idea, and 
it holds a purpose appearing in and through and uniting 
the ages. It is a moral order, and thus it has been said, 
" the history of the world cannot be understood apart from 
the government of the world." 

It is in history as the reahzation of the moral order of 
the world, that the nation is formed as an integral power. 
It is in this that the vocation of the nation is given to it, 
as in the fulfilling of its vocation its being as a moral per- 
son is reahzed. This is also implied in the reahzation of a 
moral order, since its condition is in freedom, and there 
can be no history in the law and sequence of a physical 
necessity. The nation is not then of itself a righteous 
power, but the reahzation of its being through its voca- 
tion in a moral order is in righteousness; not only the 
xaw of its being, but the condition of the realization of 
its being, is in righteousness. In its necessary being it 
moves toward this end. Thus in anarchy and oppression 
and violence and crime there is the negation of its being. 
Thus, also, in so far as it fails of its end, it passes from his- 
tory. As history is in the realization of a moral order, in 



356 THE NATION. 

the unity of a divine purpose, when the nation ceases to 
work in its own vocation in it, and to act as a constructive 
power in the harmony of its design, then it no more has a 
place in it. It is this constant possibility of evil in the 
nation that involves the most real obligation, and is the 
incitement to the utmost energy and vigilance, and it is 
this which gives solemnity to history. 

The continuous process of history is in the nation. 
There is formed in it the transition from the vague and 
the indefinite to the determinate spirit of a conscious life. 
That which lies beyond it has for its characteristic the 
undefined. The life of the nation in its beginning, as in 
the individual, holds the slow awakening of a conscious ' 
aim. It is in the moments of its existence, hidden from 
sight, as are the changes in the process of life in every 
form. The early incident and circumstance in the life of 
the people offer but the faint premonition of its course, 
and there is but the dim dawning of that vocation, which 
in the retrospect of a fulfilled purpose, rises into clearer 
light. But as the indication of its spirit, these events may 
be wrought in traditions, or again, in the type they hold, 
while in their immediate event of no significance, they 
are kept in reverent memory, and are cherished in the 
reminiscence of the people. They are often, in the pur- 
pose which they prefigure, and through the refraction of 
events, invested with a light "which was not on sea or 
shore," but become always more clear in the march of 
the people. Then in the advance of its conscious life, it 
may be that language has a more unitary and ampler 
development; but while language may of itself often indi- 
cate the boundary of a people, it is yet only the incident 
and not the foundation of its unity. Then tribunals and 
institutions of justice, and codes and instruments of law, 
are defined and established. There are in its services 
and solemnities, in its days and festivals, the memorials 
of the greater events in its course. There is, then, in 



THE NATION THE INTEGEAL ELEMENT IN HISTORY. 357 

literature and art, the work of its creative power, the 
impress of its character and the reflection of its spirit. 
There is indeed in each of these, and in all their forms, 
— in law and literature and art, — a universal element, 
and their excellence is in its more perfect expression, but 
this instead of forming an external limitation to the being 
of the nation as a moral person, is implied in personality, 
and is more manifest in its higher realization. Then law 
and Hterature and art have their continuous development 
in the nation, and their conservation in it ; it is thus that 
one speaks not only of the Greek and Roman mind, its 
quality and character, but of the unity apparent through 
the polity and hterature and art of Greece and Rome. 

The nation is formed in the elevation of man above an 
animal existence. It is not defined in a merely physical 
basis, and in certain physical relations. Its end is not the 
satisfaction of physical wants alone, nor is it compre- 
hended in the sequence of physical necessity. It is as 
the course of freedom that it becomes the expression of 
a determinate spirit, and the assertion of the dominion of 
man over nature. It is in its free spirit that man is raised 
from the stupidity of an animal condition. There is the 
inspiration of a conscious energy. Thus in Greek and 
Roman art there is the expression of the exaltation of 
humanity, — a victory which it gains, — which gives to 
it its highest type. In the Greek it is the victory of 
the human over the eartlily and sensual ; and in the Ro- 
man it is a moral discipline and virtue, in which there 
is the sign of a conquest over the merely unorganized 
and undisciplined mass, and it is this in each which gives > 
a spiritual element to its ideal. 

The nation, as it is the power in history, is formed 
in the conditions of history. Its course must be one of 
conflict and endeavor. Its battle and victory is in no aim- 
less conquest. Its vocation is no indefeasible inheritance. 
Its freedom is realized only in its ceaseless work ; it doe? 



358 THE NATION. 

not come, as things are let to fare on. Its strength is not 
born out of the sky, nor wrought in dreams. It is indeed 
maintained only by eternal vigilance. The nation must 
always strive, and it is not here nor now that it can cease 
from its labor nor enter its rest. There can be no danger 
so great as that in which it shall dream in any moment 
that it is saved, and that its struggle is over, and its con- 
flict is closed. It is with many doubts and many fears, and 
with discipline and sacrifice, that it is to work out its sal- 
vation. 

The nation is the work of God in history. Its unity and 
its continuity through the generations is in Him. He is 
present with it as with the individual person, and this is 
the condition of its being, as a moral person. Its vocation 
is from God, and its obligation is only to God, and its free- 
dom is His gift. The transmitted purpose which it bears 
in its vocation, is in the fulfillment of His will. The pro- 
cession of history is in the life of nations, and in the per- 
fected nation, is the goal of history. 

There is before the nation the attainment of the end 
of history. It is the constituent power in which history 
is borne to its end. It is to act not only in but for the 
order of God. This is apparent in its relations. It is 
given to the nation to act in the realization of the individ- 
ual personality — the formation of human character. The 
individual first becomes a person in the nation. The pow- 
ers of the individual are called forth, in the sphere of its 
law and its freedom. The nation has also to maintain in 
conformance to their moral conception all the relations of 
life as integral in a moral order.^ 

It is given to the nation to assert and establish its au- 
hority as law. It is a law regulative of the action of the 
.ndividual. This power belongs to no individual, and to 
no collection of individuals, but it is in the nation. 

1 " Ein kosmopolitisches menschliches Leben, ist eine leere werthlose Abstrac 
tion.*' — Rothe, Anfange der Christlichen Kirche, p. 16. 



THE NATION THE INTEGRAL ELEMENT IN HISTORY. 359 

It is given to the nation to bear to its issue, the conflict 
with slavery. It is not only formed in the determination 
of the spirit in its freedom, but it has to contend with the 
dominations over men, in the bondage of the world. To 
contend with slavery is the work which through providence 
in history has been given to the nation. This is only the 
statement of an historical fact ; the work has been given 
to no individual, and to no special or ecclesiastical associa- 
tion of men, but to the nation. The nation in the realiza- 
tion of its own being, — in the maintenance of its own 
unity and its own life, — is borne on to an inevitable con- 
flict with slavery. It may be for the nation gradually to 
overcome it by ameHorating laws and institutions, or in 
some sudden moment to meet it in direct conflict, when 
slavery aims at its Hfe, and it is only through convulsive 
efibrt that it uproots it in order to live. Yet it is never 
utterly removed, but will take root in other fields and in 
other forms. The forces in antagonism to the nation it 
joins in its alliance. The struggle of Greece was with 
slavery as the ally of confederatism, and of Rome with 
slavery as the ally of imperialism. The conflict has fol- 
lowed with clearer issue in the new world, and victory has 
been given to the nation in its redemptive years. 

There is given to the nation no separate and special end, 
but its vocation and its work is for humanity. This end is 
presumed in its being as a constituent element in and for 
the moral order of the world, for the moral order of the 
world is the fiilfiUment of humanity in God. The con- 
ception and realization of the life of humanity does not 
exclude the being of the nation, as if it was simply ex- 
ternal to it, nor as if it was to disappear merged into it. 

The nation on the contrary comes forth in the realiza- 
tion of the life of humanity. The life of humanity is not 
a restriction, as in some external limitation, to the nation 
as a moral person, but its ftilfillment is in the nation as a 
moral person. It is thus that there If in tne nation a con- 



360 THE NATION. 

stant exclasion of a selfish egoism instead of a construction 
of society out of it. It is thus also — as becomes more 
apparent in the course of the modern world — that it is 
not in the power of men to hold the nation in their own 
exclusive possession, nor to have their own way in it, nor 
to warp it after their own arbitrary schemes and designs, 
nor to identify it with their own selfish and private ends. 
It is thus also that it cannot be retained in the exclusive 
claim of a family or a race. In its work for humanity, 
and its fulfillment in its divine origin and relations, the 
nation has been formed in the modern world. The Turks 
appear as a power in identity with a race, but there is ap- 
parent the absence of a national being, and there is want- 
ing the organization of law and freedom and rights. 

There is, in a certain school, a tendency to refer the 
whole course and development of civihzation to races, and 
to regard separate races in their racial character, as the 
integral powers in history. In this assumption the history 
of the world is apprehended as consequent not from the 
special and physical properties of the soil, the climate, and 
the like, but from the properties of races. The devel- 
opment of history is presumed in the institution of the 
power and supremacy of a race. The most complete 
construction of history is traced through the suggestion of 
names in ancient genealogical records, and the most elab- 
orate and far-reaching theories are literally built upon no 
other foundation than the scattered bricks of the ruins of 
the tower of Babel, in whose hieroglyphics modern philolo- 
gists decipher the whole course of history, and find the 
key that opens all its changes. The only exodus of na- 
tions which it allows, is in the judgment on the dispersion 
of the builders, and the only genesis is in the confusion of 
their language. The same tendency appears in the shap- 
ing of history, after theories of Aryan spirit and Aryan 
life. There may be in the physical distinction of races 
the elements of diversitude, and of an ampler and more 



THE NATION THE INTEGEAL ELEMENT IN HISTORY. 361 

opulent culture and character, and the physical laws and 
properties of races are to be studied and not to be disre- 
garded ; but to assert the identity of the nation with a race 
is to assume for it a physical foundation, and involves the 
denial of its mora, unity and moral order. If the utmost 
that language and architecture and art and every mode of 
culture may indicate, be allowed to racial characteristics, 
the conclusion yet remains, which has the universality of a 
law, that there may be the widest possible contrast in re- 
spect to civilization in the same race, alike in the same 
age, or in mainly the same condition of soil and climate 
in succeeding ages, and that this contrast will be in exact 
proportion to the development of the life of the nation. It 
also conversely remains, that in the destruction of the na- 
tion there will appear anarchy, violence, slavery, and the 
want of a continuity of purpose, that is the extinction of 
civiHzation, whatever be the racial capacities and charac- 
teristics of men. The conception also of a power whose 
strength is in a race, and whose distinction is in the separa- 
tion of a race, does not represent the hope which is mov- 
ing in history, and is in direct antagonism to the historical 
course of the modem world. The dream of a vast feder- 
ation of the Anglo-Saxon race, which recent English pub- 
licists have told, in which certain nations were to act and 
to subsist, as the defense of the deposit of modern civil- 
ization, is an illusion which could only arise with the decay 
of national spirit in England. The project of a federa- 
tion of the Latin race which the Emperor of the French 
may at one time have indulged, which was to embrace two 
continents, and to hold in security the same deposit, met 
with immediate disaster, and its weakness was apparent as 
it came in conflict with the nations. The attempt to or- 
ganize as a political power the Slavonic races, becomes a 
source of the utmost neril, and not of progress in ci^dliza- 
tion ; and there is nothing; in the cry of Panslavism which 
win move the spirits of men and inspire the courage of 



362 THE NATION. 

armies, as do the words which express the moral beirig of 
the nation, - — the cry of " Holy Russia ! " It is the nation 
in its organic and moral unity, which acts as a power in 
history, and not a race in its special and separate physi- 
cal character. The fact in correspondence with this has 
always been, that the nation has been rent and broken in 
its strength and swept from the foundation on which it 
alone can subsist, when it has assumed to identify itself 
exclusively with a race, or to build upon the distinction of 
races. It has no longer a moral foundation, nor a universal 
end when it asserts as its ground the rights of a race, and 
not the rights of man ; and the government which no 
longer recognizes justice as necessary, nor subsists in the 
sovereignty and freedom of the people in a moral organ- 
ism, but is in identity with a race, is the sign of an expir- 
ing civilization.^ 

The nation is the power on which is laid the work of 
history. The power has not been with the more vast 
populations, nor extensive territories, nor long dynas- 
ties, but in the nation. The empires lie apart from the' 
line of the historical development of humanity. It is not 
in them that its purpose is discerned, nor in their years 

1 " The thought — that every one, even the least, his welfare, his rights, his 
dignity, is the concern of the state — that even' one in his own personality is to 
be regarded, and protected, and honored, and esteemed, without respect to ances- 
try, or rank, or race, or gifts, if only he bear the human face and form; this is the 
characteristic principle of the age, and its true distinction. This principle is 
alien to the earlier ages, and even to the age of the Reformation. It is first in 
the modern age, that humanity in its full conception has become an energizing 
principle of right and duty, determining the whole order of society." — Stahl, 
PhihsopJiie des Reehts, vol. ii. sec. 1, p. 345. 

" The inner life of man is manifested in the evolution of society; the love of 
the family passes into the love of the state, and the love of the state rises into 
the all-embracing love of humanity." — Comte, Politique Positive, ii. 14. 

Bluntschli, writing simply as the historian of political movements, says ot 
'* nationality and humanity as the two conceptions at once limit and fill each 
Other. In the earlier ages a national spirit has had an apparent influence in 
Politics and the formation of the state ; but in none has it wrought with rfie con- 
scious energy of this age. Clearly discerned as the guiding-star of coming 
political life appears the highest conception of humanity."— Gesthichte det 
AUegem. Statsrechts und der Politik, p. 659. 



THE NATION THE INTEGRAL ELEMENT IN HISTORY. 363 

that its continuous design is traced, nor in their conquests 
has there appeared the progress of mankind. There has 
not been in them the awakening of the spiritual energies 
of men. The discovery of all that remains of them, the 
colossal fragments of the architecture which they raised, 
indicate as their characteristic the representation of animal 
existence, and the worship of animal forms. Their spiritual 
powers were sunk in an animal condition, with them there 
was no Odyssey of the adventure of a moral life, and no 
Iliad of march and battle to maintain the relations of a 
moral order. Their names, in the monotony of their ex- 
istence, often owe their preservation to a passing allusion 
in the hterature of some nation with whom in some mo- 
ment they were brought in contact, or the bare record of 
the dates in their cycles is deciphered in the fading lines 
on the broken and scattered stones of their buildings. 
Thus in the ancient ages it was not in the vast empires of 
the east, as Nineveh and Babylon and Assyria, that there 
was the work of history, nor that the development of the 
spirit appears, but it was almost alone in three nations, — 
in Judaea and Greece and Rome. Their advance was the 
progress of civilization. In them was kept the prophecy 
of humanity in history, their victory was its moral con- 
quest, and its imperishable renown. In the modem ages 
the course of history is in the peoples in whom is the real- 
nation of the national being. It is thus in France and in 
England. With the unfolding of the ages this becomes 
more manifest. The movements of this age apart from it 
are incomprehensible, its battles have no significance, and 
its crises no decision. Thus Italy, from weakness and 
division in her separate provinces and rival cities, with 
the call of a united Italy, is struggling toward a national 
unity. Germany, from its narrow communities and sove- 
reignties, each with its pedantic pretensions to legiturmcy 
and the trivial forms of its courts, with their orders of 
icholars and soldiers, is rising to the unity of the German 



864 THE NATION. 

nation ; and on tlie United States was kid the call to that 
battle, in which victory through long sacrifice is the mani 
festation of the unity and being of the nation in the reali* 
ization of the freedom of humanity. These events are 
indeed the witness borne through the sacrifice of nations, 
to the resuriection of the spiritual powers of man, and the 
deHverance of the redemptive life.^ They are the dawning 
of the new ages of humanity. They who live in them 
stand in an Apocalypse. 

It is because the nation is formed as a power in history 
that in its decay it passes from history. Its decay is the 
dissolution of the moral order and the severance of the 
moral relations, in which the individual exists. The out- 
ward circumstance may remain the same. There is the 
same race or races, the same people who dwell among the 
memorials of the toil and sacrifice of their fathers, and the 
same land which was their ancient inheritance. The moun- 
tains and field and sky are still the same, but in the con 
trast with that which has been, they who dwell among them 
in the course of physical nature that changes not, are as 
those that " 'gin to be a'weary o' the sun." The presence 
has vanished in whose light all things were transfigured. 
There is no more the glory they have known. They hold 
no more in the strength of a conscious purpose, the hope 
of himianity. This dissolution of the moral being and 
unity of the nation, can follow only in the most awful 
crime and corruption of a people, and its consequence is 
in the most far-reaching disaster. There is in it a con- 
suming of power, and withering of energy, which only 
>vil can effect. It is only in the denial of the calling, 
vhich has been borne toward its fulfillment by the fathers, 
and in the consequent degradation of humanity, that the 

1 " Whoever does not assume unconditionally the might of goodness in the 
world, and its ultimate victory; whoever starts from moral unbelief, not only 
cannot lead in human affairs, but must follow with reluctant steps. We live in 
deed in the kingdoms of the redemption, and no more in the kingdoms of thi» 
world." — B/othQjTheologische Ethik, vol. iii. sec. 2, p. 901. 



THE NATION THE INTEGRAL ELEMENT IN HISTORY. 365 

nation can perish. There is in it the judgment of history. 
The convulsions of the physical world have no corre- 
spondence for it ; in the words of the Roman statesman, 
it is as if " the whole world were to perish, and to tumble 
in ruins." ^ The voice of no prophet, however trem- 
ulous with the burden of its sorrow, can express the woe 
to come. It is the severance from the generations which 
have been, and from the generations which are to be ; 
it is "a day of woe unto them that are with child, and 
there shall be great distress in the land, and wrath upon 
this people, and they shall fall by the edge of the sword, 
and shall be led away captive into all nations." The doom 
falls upon the whole land, and there is none exempt. Judaea, 
when the life of the nation was dying, and its calling was 
forgotten, and its unity broken in the assumption of sects 
and the pretension of parties, and it was to reject in its 
royal hne One who came to it as the eternal King and 
Priest and Prophet of humanity, who wept over its Cap- 
ital at the vision of its approaching desolation, is no 
longer a power in history, and the people pass from the 
gates of its immortal city, not yet returning again. It is 
scattered over the world, and among nations is as no na- 
tion. The days come to them as to the stranger, and their 
path through distant lands is marked by persecution. 
There was in Greece, in the conflict with the multitudes 
of the East and their empires, a conscious moral spirit, 
which has placed the scene of them among the immortal 
battle-fields of the world; but when there succeeded the 
ontention of her separate communities, in which the life 
^ the nation perished, the ideal fades from her art, while 
tkere yet remains the versatile and crafty skill, and the 
supple cunning 0/ the hand. The character of the people 
becomes frivolous, and their ^ourpose vain and empty ; they 
become traders and tricksters in words, the sophists and 

1 " Simile est quodam modo, ac si o'nnis Lie mundus intereat et concidat." - - 
Cicero, De Bepublica, iii. 23. 



366 THE NATION. 

rhetoricians who wander from city to city, and are led 
away as slaves by other peoples to be made their tutors : 
their land is converted into a province of a foreign em- 
pire, and for centuries they are subject to the dominion 
of the Turks.^ The decadence of the national life of 
Rome was the beginning of the end of its history. The 
figures of noble dignity and severity pass away with her 
triumphal processions. The elements of the moral being 
of the nation, the unity of organization, the devotion to 
public ends, the strength of discipline, the reverence for 
law, the sacredness of the family, all perish. The people 
are overcome by invaders whom once two or three legions 
could hold in easy subjection ; and the land is open to for- 
eign peoples, and shakes with the tread of foreign armies. 
The fall of the nation in its influence upon the individual 
is reflected through centuries, and the crimes which occa- 
sioned it leave their impress upon him. As its maintenance 
in its unity and moral being is the highest blessing, and for 
those who are to be, so also in its destruction the disaster 
sweeps on and embraces them. 

While the destruction of the nation can come only in 
the issue of the most awfiil crime, and is manifest in the 
judgment of history, it has not in history its final close. 
The life whose unity was revealed in sacrifice, does not 
wholly perish. There may intervene centuries of humili- 
ation and defeat, and the people be scattered or carried 
into distant captivities, but its spirit still lives. Though it 
is overborne by the migrations of races and the vicissi- 

1 Niebuhr says of Greece : " All its ancient institutions, nay its faith itself, 
had vanished, and there was nothing to compensate for the loss. The Greeks 
possessed no less intelligence, perhaps even more than before ; there was more 
knowledge, insight, etc. Whatever can be made they did make ; but what can- 
not be made by every one who has diligence and ambition to exert his powers, 
Buch as epic and 13'ric poetry, theso were lacking. Instead of the venerable 
tragedies of old, they had comedies. But on the other hand they were further 
advanced in the arts and the mechanical skill which belongs to practical lift; 
Their speculations were more subtle and logical, but there was no more gram 
philosophy of nature ; they still possessed political cleverness, but we find nc 
political orators." — Aneimt History, vol. iii. p. 18. 



THE NATION THE INTEGEAL ELEMENT IN HISTORY. 867 

tndes of empires, yet the type of its being is not effaced: 
The faith of the fathers and the hope of the children does 
not all fail. The words of its prophets are not all vain. 
There may come in the life of nations the renewal of its 
years, and there is manifest in them the power which can 
"restore the leaves which the locust has eaten." There 
is the faith that the nation is immortal. There is in na- 
tions the witness to the power of a resurrection. In some 
hour its sleep is broken by the gray of the new dawn, and 
its sealed springs are touched again. This is no allusive 
phrase and no vague imagery, drawn from the sphere of 
the spiritual life of the individual, but it is the reality of 
history, and its recognition is in the conscious life of na- 
tions. There is in this age an increasing testimony to it, 
and not only in the later, but in the ancient nations. 
Judaea through centuries of wandering does not lose her 
national character ; and the last words of her prophets 
spoke of the restoration of Israel. In Greece, so long 
overborne by a foreign domination, there is yet a sleep that 
is fall of dreams, and the stirrings of a new energy, and 
the broken signs of a new spirit. The life of Rome 
in its historic unity, is yet apparent in the purpose of a 
people, and is being renewed in its ancient seats. In the 
evidence of history the most utter and isolated individual- 
ism, the most exclusive and distant ecclesiasticism, cannot 
affirm the extinction of the life of nations.^ 

The moral order of the world is the fulfillment of hu- 
manity in God. This is the development of history. The 

1 " The key to the political movements in Eiirope is obviously the reaurrection 
of nationalities." — Mr. Bancroft's Letter^ 1867. 

The evidence of the power of a resurrection in nations has been stated, not 
apparently by any design nor with any reference to a real presence, as the char- 
acteristic of the modern world, that is, the world since the manifestation of the 
Christ. " AU ancient states were short-lived. Once declining they never recov- 
ered. Their course was that of a projectile, — a rise, a maximum, a precipitate 
descent. Modem nations are long lived, and possess recuperative powers wholly 
unknown to antiquity." — Dr. Lieber^ Am^r. Presb. Rev.^ 1368. 



868 THE NATION. 

realization of the moral is toward a definitely Christian 
principle. Tliis is necessarily implied in the Christian 
principle, as the universal and the immutable, that is the 
moral. As the nation is called to be a power in history, it 
is in the realization of its being the Christian nation. It 
is this in its necessary conception. It has not in its option 
the alternative to determine whether it shall be, but yet 
shall or shall not be this, but its necessary realization is 
the Christian nation. And conversely, as history is in its 
development the realization of a moral order, it is only as 
the nation acts in and for that order that the nation has 
its being in history. It is thus that its freedom has been 
wrought in the power of the redemption, and its renewal 
in the power of the resurrection. In other words, the only 
completion of the state is in the Christian state, and it 
is as a power in history, which is the redemptive life of 
humanity, that it has its vocation and its destination.^ 

The nations of the ancient ages, Judaea and Greece and 
Rome, in their historical calling, held in their ongoing 
toward the coming of the Christ, the fulfillment of the 
divine purpose. In the new ages, the ages of the Christ 
and his coming, the nations have existed in the historical 
Christian development. The formative principle of their 
life has been derivative from the Life. The nation con- 
versely, has no realization in the new ages beyond the line 
of the historical Christian development. Whatever may 
be the preconception of events, or the inference of politi- 
cal theories or speculations, this is the realism of history. 

1 " We know nothing of an antithesis between the moral and the political. 
The Ptate in which the Christian is to live must be bound by the same divine 
will that bmds him, and it must have the same for its nature which he recognizes 
as his innermost nature." — Schleiermacher, Christliche Siite, p. 279. 

" There is, in concreto, no state corresponding to the conception that can be I 
conceived, but the Christian state, that is, the state as determined through the 
moral principle, which is definitely Christian. 

"Christianity is essentially a political principle, and a politica. piTwer. It is 
constructive of the state, and bears in itself the power of forming the state and 
of developing it to its full completeness." — Rothe, Theologische Eihik, vol. iil 
tec. 2, p. 968. 



THE NATION THE INTEGRAL ELEMENT IN HISTORY. 369 

And there has been no people in whom the life revealed 
in the Christian development has been implanted, and has 
become a living energy, but it has acted as a formative 
political principle, and formative of the nation. There 
is no fact more significant than that in the same centu- 
ries, in the lands in which Mohammedanism has existed, 
there has been no national life. It has prevailed among 
vast populations, and races who in every racial charac- 
teristic were incomparably beyond the rude races of 
Northern Europe, and it has had long continued pos- 
session of the most varied and fertile territories, but it 
has created no nation. Its central and representative 
power stands now on the verge of Christendom, a totter- 
ing and discordant empire, sustained by other peoples, and 
identified with a race and degenerating into a mere 
horde .^ The same absence of a spirit formative of a 
national development appears in Buddhism. This has 
consisted only with the power of a race or an empire. 
Thus cultivated Hindus complain of the want of a power 
of political continuity, a power w^hich the continuation of 
tradition does not supply. But the absence of a formative 
political principle and national life is more apparent in 
Mohammedanism, and more significant from its immediate 
contact with the historical Christian development. 

The ancient nations stood in the prophecy of the coming 
of the Christ, the manifestation of the divine origin and 
unity and affinity of humanity. It was in the conditions 
of a moral life, that is through conflict and sacrifice, that 
the later nations came into being, whose calling was in the 
coming of Him of whom the ancient nations held the 
prophecy. The church in its unity and its power was the 
reahzation of a spiritual kingdom in the world. Its end 
was universal. There was in it the assertion of the divine 
origin and relations and destination of humanity. It waa 

1 See Goldwin Smith, The Empire, pp. 228-225. 
24 



370 THE NATION. 

in identity with no family and no race. It was the church 
of the people. The spiritual was not the abstract, and 
because it was the spiritual it was not therefore the unreal 
but in it there was the revelation of the real, — the foun- 
dation which is lying, and other can no man lay. There 
was the manifestation of a spiritual kingdom on the earth, 
in the unfolding of the spiritual powers of man. The 
church was formed, in the realization of a spiritual king- 
dom in the world, in the new ages. It was the witness 
to the redemption of the spiritual powers of man, from all 
that had dominion over them. It was the conflict of the 
Christ, the true Lord of man, in whom alone is freedom, 
with principalities and powers of evil. • The battle of the 
church with the empire in the Middle Age was in the en- 
deavor toward the realization of a spiritual kingdom on 
the earth. It was in its spiritual freedom that the nations 
were called into being. The germ of their life was hidden 
in it. In the redemption of the spirit of man there was 
the development of the life of nations. The realization 
of freedom was in the individual and in the nation, — 
the realization of the individual personality, and the moral 
personality of the nation. 

The power which was central in the world, and proceed- 
ing from Rome asserted a universal dominion over all men 
and all nations, proclaiming that Caesar is king, and that 
humanity is to recognize no other and higher, was to fall 
before the power of a spiritual kingdom, in which was the 
manifestation of the eternal king, whose coming is the 
deliverance of humanity. The church rose over the ruins 
of the empire, which had striven to establish a universal 
dominion, in the witness to the deliverance of the spiritual 
powers of man in the Christ ; in this was the sign of its 
conquest. But it succeeded to claim the dominion in 
itself, which it had denied in the empire. It proclaimed 
no longer the deliverance of man. Then when it as* 



THE NATION THE INTEGEAL ELEMENT IN HISTORY. 371 

Bomed in and for itself the life which was revealed in the 
Christ, when it refnsed to recognize a spiritual life in 
men and in nations, it became itself something external. 
It was the divine order, in the redemptive process of his- 
tory, that the spiritual should become manifest as the real. 
The realization of the individual personality, and of the 
moral personality of the nation, was in the manifest power 
of the redemption. The denial of the realization of the 
spiritual life and powers of the individual personality 
and the moral personality of the nation, apart from the 
external order of the church, involved a necessary con- 
flict. The power of Rome in its denial confronted the 
realization of the spiritual life of man. It was the church 
which assumed to stand in the place of the Christ, and it 
denied an immediate relation in the individual and the 
nation in their freedom and their life, through the Christ, 
to God. It became the contradiction of the spiritual and 
the catholic, itself the unspiritual and the uncatholic. It 
asserted in itself a dominion over men, and not their de- 
liverance. The bonds and fetters it forged were so subtle 
and strong, that it would seem that the mightiest spiritual 
effort of humanity could not break them, and no power in 
heaven or earth could rend them. 

The conflict in the reahzation of spiritual freedom, be- 
comes then, the beginning of a new age. The central fact 
in the Reformation is the realization of personality, its 
freedom, its duties, its rights, in the individual and the na- 
tion. It is the conflict of the individual and the nation in 
the realization of their being, with the dominion of Rome 
as the force of principalities and powers had been wrought 
in that to crush human freedom. The witness to the re- 
demption of the world, the sign of the conquest of the 
Christ, was not in the church against the world, but it was 
in the nations of Christendom in their conflict with the 
church. The spiritual conflict was the conflict of the 
nations. 



872 THE NATION. 

This has its repeated illustration in modern history, ami 
appears through the complications of its events and the 
commingHng of its actors, and its record is in pages which 
are not yet closed. The nations have been involved in a 
conflict with Rome for their integral unity and being. The 
struggle has been for their existence, their order, their 
freedom. There is none as it has sought to realize its 
freedom, that has been exempt from the secret or open 
assault of Rome. Its attack has taken on every form, and 
there is no weapon however cruel, and no device however 
false, which it has not used, and no ally however evil, 
which it has not engaged. It has appeared on every field 
as the foe of the life and liberties of nations. The record 
is in the earlier as in the later nations, and is crowded with 
its evidence. In Italy no other fact has wider or more 
patent illustration. It is there indeed more complex in its 
phases, since upon her was bestowed the fatal gift which 
wrung from Dante his sad and bitter protest. The 
result is summed up in the conclusion of a recent writer, 
" The papacy has been the eternal, implacable foe of Ital- 
ian independence and Italian unity. It never would per- 
mit a powerftil native kingdom to unite Italy." ^ Mac- 
chiavelli, who inscribed his " History of Florence " to 
Clement VII., says, " all the wars which were brought upon 
Italy by the barbarians," — that is, foreigners,^ — "were 
caused mainly by the Popes, and all the barbarians who 
overrun Italy were invited in by them. This has kept Italy 
in a state of disunion and weakness." In France the con- 
flict appears in varying forms, through century after cen- 
tury. The life of the nation was maintained by none with 
a higher purpose, and its powers were guarded by none 
with a profounder spirit than by the holiest of her kings, 
Louis IX. The edict, in the name of " Louis, by the 
Grace of God, King of the French," has been caUed " the 
great charter of independence to the Galilean Church ; ' 

1 Milman^s Latin Christianity, vol. i. p. 477. 



THE NATION THE INTEGRAL ELEMENT IN HISTORY. 373 

and in its course, it has been said of it that, " seized by the 
Parliaments, defended, interpreted, extended by the law- 
yers, it became the barrier against which the encroach- 
ments of the ecclesiastical power were destined to break ; 
nor was it swept away until a stronger barrier had arisen 
in the unlimited power of the French crown." The issue 
was never more clear than in the long drawn battle of 
Boniface and Philip the Fair. It has been continued by 
her Cro^vn and Parliaments and Courts ; it has suffered 
interruption neither in monarchical nor republican epochs ; 
it underlay the prolonged controversy of the canon and the 
civil lawyers ; it was to justify the language of a philo- 
sophic historian, — " the Galilean liberties are the standing 
anti-Pope." In England, the conflict of Rome with the 
nation, through all her better centuries, has been borne 
in the front of her battles. It has summoned her Kings 
and people to the field more often than any other cause. 
The strife of the Tudor age, which made the mightiest 
of her kings, Henry VIII., " the only supreme head in 
earth of the Church of England," and the wars of the fif- 
teenth and sixteenth centuries, whatever the immediate 
form they took, were the battle of the nations against the 
universal dommation of Rome, and in them the nations 
were contending for their very being and freedom. The 
wars of the Low Countries, of Elizabeth, and of William 
of Orange, which, so frequently renewed, closed for at 
least one epoch on the field of Blenheim, involved this for 
their actual issue. The alliance of Rome against the na- 
tions was with imperialism. It is with that her power has 
combined, and she has wielded that to crush nations. It 
is thus that she found her instrument in Philip II., in 
Louis XIV., in Napoleon III. As Spain, in her imperial 
ige, sought to fasten the domination of Rome upon the 
nations, in her swift decline the fetters she strove to rivet 
upon them were drawn more closely upon her, and France 
has fortified within and against herself the -DOwer she went 



874 THE NATION. 

to Italy to sustain. It is this conflict whick has never been 
absent from the thought of the greater modern statesmen, 
as William of Orange and Cromwell.^ In Germany the con- 
flict has been more apparent with the German nation. The 
work of Luther was the awakenmg of a national spirit. 
The power of the Electors was his constant support. The 
issue is continued in the most recent events. The alliance 
of Rome with imperialism in Austria has been always in 
antagonism to the unity of Germany and its freedom. 
The battle of Sadowa was the triumph of Protestantism, 
the triumph of the German nation, the Germany of Lu- 
ther and Hegel. Its immediate result was the widest dis- 
aster to Rome. 

In every nation where Rome has a vestige of authority, 
the conflict appears. The irreconcilable hostility of Rome 
to the being of nations has never had more open avowal 
than in this century .^ In Italy it is still the unceasing an- 
tagonist to the nation. It does not acknowledge the exist- 
ence of the nation of Italy, and recruits an army out of 

1 " The conservation of that, ' namely', our national being, is first to be viewed 
with respect to those that seek to undo it, and so make it not to be." " What- 
ever could serve the glory of God and the interests of his people, they see more 
eminently in this nation than in all the nations in the world; this is the common 
ground of the common enmity entertained against the prosperitj' of our nation, 
against the very being of it. All the honest interests, all the interests of Prot- 
estants in Germany, Denmark, etc., are the same as yours. Therefore the dan- 
ger is from the common enemy abroad, who is the head of the Papal interest." 
— Cromwell's Letters and Speeches, vol. iii. p. 150. 

2 In the Encyclical of December 6, 1864, Pius claims the exemption of the 
clergy from the authority of secular tribunals, and asserts a divine sanction in 
" refusing to permit their cases to be subject to the judgment of the latter." The 
traditions of ecclesiastical supremacy are not forgotten for one moment, and it is 
asserted that "rulers are subject to the jurisdiction of the church," and even 
that "in the state, internal municipal laws are involved in the same subjection." 
The necessary antagonism to modern civilization is indicated, and the syllabus 
in its close deems it a fatal error, that " Romanus Pontifex potest ac debet cum 
progressu, cum liberalismo, et cum recenti civilitate sese reconciliare, et com- 
ponere." — Pii, P. P. IX., Syllah., December 6, 1864. 

Milman, in his conclusion on the condition of the Latin Church, says * " Thr 
clergy in general, there were noble exceptions, were first the subjects of th« 
Pope, then the subjects of the temporal sovereign." — History of Latin Christian 
ky, vol. viii. p. 158. 



THE NATION THE INTEGRAL ELEMENT IN fflSTORY. 375 

all lands, and its drum beats the roll-call of a m<)tle;^ 
crowd, and once more, in alliance with imperialism and 
with foreign soldiers, its flag is borne before them to battle 
with the people of Italy. In America, with some eminent 
individual exceptions, the influence of Rome was with 
confederatism, and while it is not clear whether the act 
was in her spiritual or temporal capacity, nor what guise 
was worn, Rome was the only power to recognize the con- 
federacy. In Mexico and the South American Republics, 
it is the unceasing foe of their unity and freedom. In 
every sphere of diplomacy its emissaries are engaged, and 
its policy seeks supremacy. It is the so-called clerical 
party in these unhappy and disordered states, that is al- 
ways in league with secession ; there is no power that 
works so secretly through municipalities and provinces, 
and in combinations with factions and parties, to subvert 
the whole to its own ends. It is the foe in all to their 
progress and education and order and freedom. 

This antagonism of Roman ecclesiasticism to the nation 
is involved in its necessary postulate. The domination it 
has assumed, its authority, its scope, cannot consist with 
the realization of moral freedom. The Reformation was in 
the realization of freedom. There was in Protestant his- 
tory the development of a positive principle. It was not 
a merely negative movement, only the protest against cer- 
tain errors and abuses, but there was the manifestation of 
moral freedom, — the positive realization of personality in 
the individual and the nation,^ — the life, the being of 
each as existent in its origin in God, and in its unity and 
continuity derivative only from God. The great postulate 
of Protestantism is the assertion of the immediate relation 
of the human spirit to the Christ, and between the human 
soul and Him, there can stand neither priest nor book. It 

1 " The principle of moral individualism stamps the movement with its chai* 
icteristic impress. 

" It was the reality of moral freedom in Christ, that more than all else gav# 
triumph to the Reformation." — TuUoch, Leaders of the Reformation, p. 135. 



376 THE NATION. 

is the assertion in the Hfe of humanity in history, not of a 
formal but a real theocracy, — the divine order of the 
world in the Christendom of nations. 

This antagonism is necessary also in the assumption of 
Roman ecclesiasticism, since it denies to the individual and 
to the nation a real and integral moral being, — the reali- 
zation of a divine vocation in the moral order of the world 
— which is not formulated through it. The individual and 
the nation apart from the church, are regarded as in iden- 
tity with the world, — only the kingdoms of this world, — 
and the church will concede to them, therefore, no spiritual 
life or powers, no real freedom, no fulfillment of a divine 
vocation, in conscious obedience to a divine will. It as- 
sumes the working of the divine energy, and the falfiU- 
ment of the divine purpose in itself alone, and in the indi- 
vidual and the nation only as formulated through it, and 
the moral — that is in its definite Christian realization, the 
moral order of history, apart from itself is unreal, only the 
legal, the unspiritual condition of man. It assumes that 
in and through itself alone the redemptive life is formed, 
and in it alone is manifest the power of the redemption 
and the power of the resurrection. It alone is built upon 
" the foundation which is lying ; " and itself external, all 
which is external to it, is a baseless structure. It alone 
stands in the living and eternal wiU, and that only has a 
real and a moral continuity which is formed in it. It wiU 
not concede that in the individual and the nation as separ- 
ate from itself, there is wrought the work of righteousness 
on the earth. Therefore when Protestantism asserts that 
the nation has the condition of its being in righteousness, 
and in righteousness alone its strength and exaltation, and 
that its unity and continuity is only in the wiU of One, 
who will establish righteousness on the earth, and its free- 
dom in the obedience to that will, and its being and re- 
sponsibilities in an immediate relation to that, — these 
truths Roman ecclesiasticism, in its primary assumption 
denies and discards. 



THE NATION THE INTEGKAL ELEMENT IN HISTORY. 377 

The inevitable character of this antagonism in Roman 
3cclesiasticism appears also in the fact that it will not con- 
cede a real and immediate relation in the individual or the 
nation to God, — to God as manifest in the Christ, — nor 
that their life and personality are immediately and only 
derivative from Him. The hfe of the individual, the 
moral life as definitely Christian, it asserts to be mediated 
and formulated in it, and that the nation is only the prov- 
ince of physical forces, the combination of material inter- 
ests, a secular kingdom, in whose course there is only what 
it calls a phenomenal morality.^ It will not admit the 
divine guidance of the people in its history, and holding 
the Hght only in itself, it discerns not the presence which 
goes before the march of the people. It does not allow in 
the nation a means or agency of actual good, nor that it 
derives its wisdom and courage and understanding only 
from God, nor that its obHgation is to no other power on 
earth, but only to Him. It will not admit in it a vocation, 
whose duty cannot be transferred to another. In its as- 
sumption, the nation is not a power in the realization of 
the divine kingdom in the world, but in its origin and end 
is in ahenation fuom it, — only a kingdom of this world. 

The church, in this conception, comes to regard the 
being, the imity and the freedom of the nation with in- 
difference, when it is not its avowed antagonist. The 
nation is regarded at the most as only formal and abstract, 
and existent in indifference to right and wrong, and the 
church is not to stoop to what it represents as the secular 

1 " The Catholic confession, although sharing the Christian name with the 
Protestant, does not concede to the state an inherent justice and morality — a 
concession which in the Protestant principle is fundamental. This severance 
of the political morality, which is necessary to the being of the state from its 
natural connection, is characteristic of that religion, since it does not recognize 
justice and righteousness as something 'ntegral and substantial. But thus iso- 
lated and torn away from their inner centre, the sanctuaiy of conscience which 
is their last refuge, and the still retreat where religion has its abode, the princi- 
ples and institutions of political legislation are destitute of a real unity in the 
same measure in which they are compelled to remain abstract and undefined.' 
— Hegel, Phihsqphie der Geschichte, p. 64. 



878 THE NATION. 

aims in the life of humanity. In its vie-w, the unity and 
continuity of the nation in which the fathers are turnea 
to the children and the children to the fathers, the author- 
ity of government and the reverence for law, and the 
punishment of crime on the earth, and the triumph over 
oppression, over principalities and powers which have held 
dominion over men, involve no immediate and divine obli- 
gation. The aim of the statesman is no longer the con- 
formance of legislation to a divine law of righteousness, 
and the end of the state is no longer the fulfillment of an 
order which he did not create, but whose principle he is to 
obey. The faith of the people, the fulfillment of its work 
through all the trials of its years, the very devotion and 
sacrifice of its children, the wisdom and courage of its 
leaders, have no real moral significance, but are only the 
continuance of a sacrilegious course, the circumstance of a 
profane history.^ 

1 This is also the attitude of many of the sects, and the conclusion of their 
logic, when it does not avoid its premise. A recent writer says: "The secular 
career of man is a violation of sacred obligations and of a divinely established 
order. In reference to the divine idea and intent, it is a sacrilege — well denom- 
inated profane — the history of the world as the opposite and antagonist of the 
church, only the ordinary workings of the human mind, and such products as 
are confessedly in its competence to originate, etc." Then the construction of 
the Nicene formula is described in its parallel, in the sseculum necessary to it, 
"As long a time as was required for pagan Rome to conquer and subjugate the 
Italian tribes, and to lay the foundations of a nationality that was to last a mil- 
lennium in its own particular form; as long a time as was required for the thor- 
ough mixing and fusion of British, Saxon, and Norman elements into that mod- 
ern national character which in the Englishman and Anglo-American is perhaps 
destined to mould and rule the future, more than even Rome has the past." 
Then the parallel of the Nicene formula is continued. " The one is metaphysical 
the other is political and relates to the rise and formation of merelj' secular sover- 
eignties, exceedingly impressive to the natural mind and dazzling to the carna 
eye; these metaphysical victories secured a correct faith, etc." — Shedd's History 
of Christian Doctrine, vol. i. p. 18, p. 374. This is the conception, in which, in 
the consistent and necessary sequence of its premise, national life is appre- 
hended. 

It is evident that the character of the appeal to the eye is consequent upon 
the content of the object; but there has never been in the life of nations an 
immediate appeal to the carnal eye to compare with that made in the centurief 
included in this parallel, by the visible church. 

There is the assumotion in this description also of the apprehensi n of trut« 



THE NATION THE INTEGRAL ELEMENT IN mSTORT, 379 

There is a so-called catholic church, beyond the pale 
of Rome, which assumes the same. If a nation is strug- 
gling for its unity and being against forces of division 
and dissolution, it is a subject of no moral concernment. 
The life of the nation and the sacred obligations of its 
citizenship, which so inspire common men that they will 
die for them, and pass those gates of holy and willing sac- 
rifice with the sacrament of the nation upon their lips, it 
regards only with moral indifference. If a people in a 
great crisis are redeemed from slavery, it sees not the 
glory of their deliverance. It heeds not the roll of the 
waves parted by the right hand of Majesty on high, but 
asks only that it still may catch the murmur of waters, 
breaking on the shores of ancient wrong. It repeats its 
protest against sedition, conspiracy, and rebellion, but to 
their reality its conscience is dead. It asks in the litany 
of human hopes and sorrows, for the unity of all nations, 
but for those who hold the unity of the nation as a divine 

only as a proposition. It is represented in its scientific precision as an abstract 
formula, and the contrast is with the real conflict of history. The analogy in 
the centuries of the construction of this formula may have another presentation. 
This metaphysical speculation never had more exclusive control of the thoughts 
of men, nor more regard for its scientific precision than in the city of Constan- 
tine, under Heraclius, in the beginning of the seventh century. It passed on to 
the controversy as to the two wills; but the impressiveness of its themes did not 
affect the lives of men. It was the sign of the division of the schools, it sepa- 
rated society in the avenues of fashion, it started the mob and tumult in the 
streets, it was the signal of parties in miserable circus-fights; but it awakened 
no moral energy. It was apprehended onh' as a dogma — an abstraction — and 
with no reference to the actual condition of men. It was a strife only measured 
by the scientific accuracy of terms, in which a dogma was held. It was then 
that their foundations on which they built— the foundations of a system, but 
not of a living Person whose Will had been revealed to men — were shaken 
by the coming of a conqueror, as a voice from the desert. It has been said 
by an historical writer, " his words and deeds carried out the moral of the previ- 
ous history. Mohammed proclaimed an actual God, to men who were disputing 
concerning his nature and attributes. Mohammed affirmed that there was an 
actual will, before which the will of man must bow down. It was a tremendous 
proclamation. Philosophy shrinks and shrivels before it. All ethical specula- 
tions are concluded by the one maxim, — that God's commands are to be obeyed; 
All metaphysical speculations are silenced by the shout of a nost, " U.9 is, and 
we are sent to establish his authority over the -arth." 



380 THE NATION. 

gift, it is silent and offers only the drowsy opiates of 
this world that drug the spirits of men. Its hierarchy 
will not soil itself with these common aims, although St. 
Peter could ask with longing for the time of the resto- 
ration of Israel, and St. John could trace in the historical 
order of the nation, the symbols of eternal things, and St. 
Paul could dwell upon its historical events as the sacra- 
ments of the divine presence, and the voices of Prophets 
have been lifted in exultation at the nation's deliverance, 
or burdened with its sorrow since the world began. It 
wearies of the symbols of the prophetic office when the 
reality is gone. It concerns itself with a ritual and pro- 
cessions, but they are no longer the ritual, nor the proces- 
sions of a people. It finds no longer a significance in the 
name of Protestant, since it has no place in the great pro- 
cess of Protestant history. 

Whether the United States will be involved in an im- 
mediate conflict with Rome, lies in her future. Whilo 
there are noble, but still few exceptions, her unity and 
education and freedom will meet in Roman Catholicism, it 
may be a guarded and often concealed, but an unceasing 
antagonist. Those who see in the course of the Christian 
centuries only the development of a dogma, and regard 
Protestantism as an intellectual conflict, can find no ground 
of apprehension. M. Guizot turns from speculations on 
the essence of Christianity, to advocate a confederacy 
in Italy, and the maintenance of the temporal power of 
the Popes ; but to those for whom the conflict of so many 
centuries has a deeper reality, the ecclesiasticism of Rome 
bears another character. Milton was the statesman of a 
greater age, and was a wider scholar, and of fairer sym- 
pathies, but for him it was " the old red dragon." It was 
to be met by the nation in a struggle of life and death. 
And the nation wiU not maintain its unity or its being if 
it meet it only as a material force. The church will not 
give place to an atheistic state, nor to a material civiliza 



THE NATION THE INTEGRAL ELEMENT IN HISTORY. 381 

tion. The end of history is not attained, and the destina- 
tion of humanity is not realized in that. 

The nation can meet the forces with which it has to 
contend only as it reahzes its own moral being, and recog- 
nizes its origin and end in God. If it be held in a merely 
material conception, it can bring no strength to the real 
battle of history, where moral forces contend. If it be 
regarded as only formal, it will be broken by that held in 
a subtler bond. The nation is called to a conflict in every 
age, where the result does not depend upon the strength 
of its chariots, nor the swiftness of its horses. It is to con- 
tend with weapons wrought not alone in earthly forges — 
it is to go forth clothed with celestial armor, and of celes- 
tial temper. It is to fulfill a divine calling. It is to keep 
a holy purpose. It is to enter the battle for righteous- 
ness and freedom. It is to contend through suffering 
and sacrifice, with faith in the redemption of humanity, 
for the rights of humanity, — rights given to it by Him 
whose image it bears. 

Note. — The morality of a people, and so also its politics, will always corre- 
spond to its actual theology, and will be but the sequence of that. The assertion 
that men are saved, not by faith in a divine person, but by faith in a dogma or a 
system of dogmas, induces a formalism, which is reflected in politics, in the 
notion that a political form or dogma will save the nation. Thus we are told 
as before by the theological doctors, now by the political doctrinaires, not that 
the people are saved by faith in God and his righteousness, but that the only 
safety is in the constitution, inclusive of a certain scientific formula, defining 
the correct relation of the states. 

The discussion as to the formal recognition of God in the written or enacted 
constitution has scarcely a better ground. In the historical or providential — 
the real and unwritten constitution, — it is the very condition of the being of the 
nation. But the written or enacted constitution defines only the formal or- 
ganization, and relations of the powers of the state, and then also it is an 
instrument of law, and subject to amendment, etc., and the divine recognitios 
might be required with the same propriety in every legislative enactment. 



CHAPTER XX. 

THE NATION THE BEGINNING AND GOAL OF HISTORT. 

The aim of political science is the presentation of the 
nation, as it is in its necessary conception. Its ohject is 
to define it in that unity and law which alone is the con- 
dition of science. This necessitates an inner and critical 
justification of its representation. 

The nation is organic, and has therefore the unity of an 
organism, and in its continuity persists in and through the 
generations of men ; it is a moral organism, it is formed 
of persons in the relations in which there is the realization 
of personality, it is not hmited to the necessary sequence 
of a physical development, but transcends a merely phys- 
ical condition, and in it there is the realization of freedom 
and the manifestation of rights ; it consists in the moral 
order of the world, and its vocation is in the fulfillment of 
the divine purpose in humanity in history. 

The nation as it exists in its necessary conception, is the 
Christian nation. 

The Book which illustrates from the beginning of his- 
tory the divine purpose, and the divine order in the world, 
has been and is the book of the life of nations. It is not 
a book which belongs to the childhood of the race and out- 
grown is to be left with stories and pictures to children ; it 
is not a book of abstractions, to be shaped in the systemj 
of schools ; it does not hold the life of nations in indiffer 
mce, as do the hierarchs of ancient and modern religions, 
to find their sanctity in their external isolation. It con 
tains in the order of history fi-om its beginning to its close, 
the revelation of the origin and unity of the nation, and 



THE BEGINNING AND GOAL OF HISTORY. 383 

the law of its being. It is the record of the revelation 
through history of the divine economy. It is not to con- 
strue the polity of one age, but of the ages. There is the 
unfolding of principles which are deeper than a formal 
order and a formal organization. They are not concluded 
in the transient and local. In the succession of events 
they do not become isolated, and in the changes of time 
they do not become obsolete. They are the revelation of 
an authority which no tyrant can suspend, and no anarchy 
subvert.^ 

This has its clearest assertion from those who have been 
called to their work in the foundations of nations ; it has 
been, in the crises of nations, their strength and their stay, 
and its words have wrought with the power of a divine in- 
spiration in the spirit of the people. There is in the liter- 

1 There is much that is suggestive in the comparison of those great contem- 
poraries — Spinoza and Hobbes ; and it has been often traced, and in many ways ; 
but it is in no respect more significant than in the consideration which they give 
in their political -RTitings to the Hebrew Scriptures. In their political inquiry, 
neither of them can avoid the fact of the wide and continuous influence of the 
Hebrew Scriptures upon politics, and each sets honestly to work to account for 
it, and to ascertain some principle of reconciliation between them and their own 
theories. There is reflected in each the thought of schools and sects in this age, 
who hold their names in distrust. 

The result of their attempt to reconcile their political conceptions with the 
Hebrew Scriptures, is stated by a recent historian of philosophy: "All the in- 
genuity and courageous dogmatism of Hobbes, could not hinder him irom ap- 
pearing awkward and sophistical when he tried to reconcile his theory of society 
and of government, with that which represents God as constituting the family; 
Grod as forming the people whom He had delivered from bondage into a nation; 
3rod as himself governing it, whatever subordinate instruments — priests, kings, 
prophets — He employs; God as preparing them for the manifestation of a divine 
kingdom, wherein men should be governed by a Father, be united to each other 
in a Mediator, by an in-dwelling Spirit. 

" Spinoza is still more embarrassed, precisely because he has more sense o^ a 
divine economy, and is less able to divest himself of early associations. The 
strange dream of a people, persuaded by their law-giver to regard God as their 
King, and to bind themselves under a covenant to Him, has to be maintained 
under all difiiculties that he may show how peculiar the Hebrew state was, how 
little it can be a model for other states, and ye: what lessons it may teach them 
respecting the dangers of monarchical, still more of priestly or prophetical usur- 
pation. Having once got rid of the primary idea of the Jewish state, he could 
have no difficulty whatever in disjommg its history from the history of all other 
nations." — Maurice, History of Modern Philotopky, p. 410. 



884 THE NATION. 

ature of the world no other expression of the ground and 
being of the nation, as it is found here in the beginning 
of history ; — no other expression of the glory and honor 
of the nation as it is unfolded here in the goal of history. 
Its words have been kept, — 

" As better teaching. 
The solid rules of civil government, 
In their majestic, unaffected style. 
Than all the oratory of Greece and Rome ; 
In them is plainest taught and easiest learnt, 
What makes a nation happy and keeps it so, 
What ruins kingdoms and lays cities flat." 

There has been no more constant recognition of its 
political principle than is repeated in the writings of the 
fathers and founders of the republic. In their confession 
of the divine presence and the divine guidance, there is an 
accordance as of the psalms of a nation. The recognition 
of the origin and continuity of the nation in God, is re- 
peated in the inaugurals of the earlier Presidents. It is 
not the utterance of empty phrases in some indifferent mo- 
ment, it is spoken in the hour of the assumption of the 
most sacred trust, the imposition of the most sacred obliga- 
tion. The words of its great citizen Franklin, which reach 
to the foundations of political thought, in the most critical 
hour, in the Convention of the Representatives of the peo- 
ple for the formation of the constitution, were, " We have 
been answered in the sacred writings, that 'except the 
Lord build the house, they labor in vain that build it.' I 
firmly believe this ; and I also firmly believe this, that 
without his concurring aid, we shall succeed in this polit- 
ical building no better than the builders of Babel. We 
shall be divided by our little partial local interests ; our 
projects will be confounded ; and we ourselves shall become 
a reproach and a by- word down to future ages."^ Presi- 
dent Washington said in his first inaugural, " No people 
can be bound to adore the hand which conducts the affairs 

1 The Convention, June 28, 1787. 



THE BEGINNING AND GOAL OF HISTORY. 385 

of men more than the people of the United States." ^ 
There is no language deeper in its analogy than that of 
President Jefferson at the close of his inaugural, " I shall 
need, too, the favor of that Being, in whose hands we all 
are, who led our fathers as Israel of old from their native 
land, and planted them in a country flowing with all the 
comforts and the necessaries of hfe ; who has covered our 
infancy with his providence, and our riper years with his 
wisdom and power, and to whose goodness I ask you to 
join in supplications with me." ^ The last inaugural of 
President Lincoln was the unbroken expression of the spmt 
of these Scriptures, and its whole thought was gathered up 
in their words, in the recognition of one who will estabhsh 
righteousness on the earth, " whose judgments are right- 
eous and just."^ And if there be in the beginning of 
nations a prescience, the words on the lips of the Pilgrims 
were not of a state formed in the poor figment of the social 
contract, nor a condition in which there was merely a neg- 
ative freedom where conscience was released from all ob- 
ligation, but they were of a life in which these principles 
become a living power.^ 

There is, however, a preconception in two opposite 
forms, each of which, while recognizing in these Scriptures 
the representation of the nation, Kmits it in its principle 
and its end. 

1 President Washington's Inaugural, April 30, 1789. 

2 President Jeflferson's Inaugural, March 4, 1805. 

* President Lincoln's Inaugural, March 4, 1864. 

* See Lectures by members of the Massachusetts Historical Society, 1869- 
The Aims and Purposes of the Founders of the Massachusetts Colony, by Rev 
George E. Ellis, pp. 50, 55, 63. This statement of the object of the founders of 
Massachusetts has a singular historical value. It is the true Puritan tradition, 
and beyond the empty theories of freedom and law and the state, which a later 
age sought to assume as historical in its stead. The law <?^ suffrage, nowevci 
defective its form, had a true and consistent principle. The expression of Win- 
throp was, " The civil state must be raised out of the churches." This also 
could not consist with a negative or formal coiJceptioE. of freedom, and Wiathro j 
alwavs condemns such a conception 

25 



386 THE NATION. 

It is said, in tlie one form, that Judaea was a theocracy 

and then the inference is drawn that, by this fact, it is 
isolated from other nations, and for them has no immediate 
significance. The word theocracy, in this connection, is 
traced from Josephus, a Jew of an imperial age, and if it 
represents the isolation of one nation from another in the 
divine government of the world, or the exclusion of any 
nation from the universal law manifested in that govern- 
ment, then it is the assumption against which the prophets 
constantly contended. 

And the principles in which Jud^a is formed, are rep- 
resented as the universal and immutable laws which are 
the condition of the life of a nation. If it had not a divine 
origin and unity, if there had not been in it the pres- 
ence of an invisible King, it would then have been the 
exception, and its course the singular circumstance, the 
abnormal condition in history. 

It is said, however, that the divine vocation of the peo- 
ple, and the foundation of the nation in a righteous Will 
which was manifest in Judaea, is limited to the past, to the 
prophetical ages, but with the coming of the Christ, in 
whom those ages are fulfilled, it ceases to be real. There 
is no more a divine presence and guidance of the people, 
.lor the foundation of its unity in a righteous Will, nor 
the condition of the being of the nation in righteousness. 
Then in the later manifestation the divine power is further 
removed. Judaea was a nation called and chosen in his- 
tory, but in the fuller years there are none. The end is 
changed from the beginning, that history is to be read as 
the letters in the Hebrew books. But the Christ is repre- 
sented in his coming as the only King, and as nearer to 
humanity than in the earlier ages, and as revealing in his 
own life the foundation of its eternal relationships. The 
Christ is called the only King, the Deliverer, in obedience 
to whom the freedom of the individual and the nation con* 
sists. And as there has been in nations the recognitioE 



THE BEGINNING AND GOAL OF HISTORY. 381 

of the Christ as the Ejng, there has been the formation 
of a national life, and the unity in which alone the divis- 
ions of races are overcome ; and as the nations have 
rejected the Christ as the King, no more a power in his 
Kingdom, they have passed from history. 

It is because Judaea was a real theocracy that it is not 
detached from the government and history of the world, 
and its record is of worth for every nation, and the pres- 
ence of which it is the witness is not more distant but 
nearer than of old, — the Christ is the King from whose 
authority no nation is excluded. But it is allowed that, in 
a certain conception, the Christ is the King, and then the 
conception is assumed to be one to which the nation may 
give no ftirther heed. It is held as an abstraction, and 
withdrawn from the actual lives of men and nations. It is 
referred to the province of the dogmatist and the ecclesiast, 
and is presumed no longer to concern the man of affairs ; 
the statesman may recognize it only as in some rhetorical 
phrase, he strengthens his appeal in conformance to pop- 
ular impressions not yet worn out ; the journalist is to dis- 
miss it as belonging to the dream of the mystic, but having 
no relation to events as the days go by; the economist, 
apprehending the nation only as the commonwealth, may 
insist upon a sustained indifference to it, as alone con- 
sistent in poHtics, until there comes some crisis, when the 
maxims of economy are unheeded, and the craft of parties 
is confounded, and the systems of theorists and the devices 
of legists are burned as stubble in the flames that try all 
things. 

The nation is constituted not in a formal but a real 
theocracy, and there is nothing more to be considered in 
certain phases of modem thought than the negation of the 
real theocratic idea in connection with the avowal of its 
abstract postulate and abstract conclusion. It eliminates 
the whole content of tne Gospels in their constant repre- 
sentation of the Christ as the King, while deferring to its 
abstract conce tion. 



888 THE NATION. 

If fiirther it be assumed that Judsea, in the recognition 
and presence of the divine King, becomes the anonialy in 
history, this is controverted by the fact that it is a nation.^ 
This is its historical condition, whatever may be the drift 
of historical abstractions. The laws of the life of nations 
are illustrated in it, but it is not exempt from them 
There is no presentation of the formulas of political sci 
ence, in the construction of a system, but there is the 
being of the nation in history. There is no formal organ 
ization defined in necessary correspondence to the nation, 
but it exists in its identity under the .lawgiver, the judges, 
the kings ; and the peril, which is always near, is that the 
people will lose the consciousness of the unity and con 
tinuity of the nation in its invisible king, and apprehend it 
only as a formal and external organization. 

In the opposite form to this, — in which the representa- 
tion of Judsea as a theocracy has been made the premise of 
its detachment in history, — its representation as a nation 
is made the premise of the same conclusion. 

It is admitted that Judaea was a nation, but there is the 
conception of the nation as only in identity with an exclu- 
sive form or principle, and the denial of its universality. 
The nation is regarded as formed only in a separative 

1 " The true spiritual life of the world commenced in the chosen people. He 
who denies this would seem to deny not a theory of inspiration, but a great and 
manifest fact of history. But the spiritual life commenced under an earthly 
mould of national life, similar in all respects, political, social, and literary, to 
Ihose of other races. The Jewish nation, in short, was a nation and not a mira- 
cle. Had it been a miracle, it might have shown forth the power of God, like 
the stars in Heaven, but it would have been nothing to the rest of mankind, nor 
could its spiritual life'have helped to awaken theirs." — Goldwin Smith, The 
Bible on Slavery, etc., p. 5. 

Spinoza represents the position of Judsea as isolated in history. The second 
mquiry in the introduction to the Tractaius Theologico Politicus is, " Why the 
Hebrews were called and chosen of God?" to which the answer is, " When I 
«aw that this meant nothing more than that God gave them a certain spot of the 
earth, where they might dwell securely and commodiously, I learned that the 
laws revealed to Moses by God, were nothing but the laws of the special Hebrew 
empire, and therefore that none except the Hebrews were bound to receiv« 
them; nay, that even they were not bound by them, except so long as their 
empire in Palestine lasted.'' 



THE BEGINNING AND GOAL OF HISTORY. 389 

principle. It is the local and transient, and is a subject 
of concernment to a certain people, and therefore of no 
further concernment. It is only the special circumstance 
of history, and is comprehended in the special character- 
istics of a people. 

But it is, as containing the revelation of the being of 
the nation — it is as national, that the Hebrew Scriptures 
are of worth to every nation. If they represented the 
being of the nation with indifference, or as simply a formal 
organization, then they would have no immediate worth 
for this or for any nation. It is because they reveal the 
foundation of the unity and continuity of the first nation 
in history, that they may become also the book of the last. 

Mr. Lowell speaks of the mind of Cromwell in certain 
higher moments, as "working free from Judaic trammels." 
But in the age to which Cromwell was called, in the battle 
with unrighteousness in the land and with the allied 
imperiahsm and ecclesiasticism of which Spain was the 
front, it was not trammels which were forged for him in 
the Old Testament which he knew so well, and had studied 
as none of England's kings before or since. "Would 
a knowledge of what is described as Aryan civilization 
have been a substitute for the record of that national life, 
so deep and so intense and Hnked to the Throne of God, 
and finding its unity in Him? There have been those 
whose thought was without " these trammels " — Julian, 
with a fair and cathohc culture, whose aim was an intel- 
lectual imperiahsm, into which all nations were to be 
merged, as their images and divinities were to be gathered 
in one hall; — Spinoza, whose ideal of the state was, that 
''it should leave the philosophers free to think;" — 
Groethe, as the courtier at a little principality, who com- 
plained that " in the state, no one was willing to live and 
enjoy, every one wanted to be ruling; " — would Crom- 
well, working still in the type of his own individuaHty, have 
found in the riddance of " Jud3il3 trammels,'' with these, 



390 THE NATION. 

elements of freedom? If we study the mind of Cromwell, 
every element of strength was wrought in the faith in 
which these words hecome an inspiration. There was 
another — his secretary — in the same work, who knew 
these Hehrew Scriptures not as a hoy but as a man knows, 
but in that type of strength and freedom which is only of 
more worth if it have traces also of an Hellenic spirit, 
" the Samson Agonistes," still so perfect an expression of 
undying faith in the triumph of the nation over all its ene- 
mies, — is there the restraint of old trammels, — the defect 
of Milton's freedom ? They may not always have sepa- 
rated that which in the earthly vesture of the nation is 
local and transient, from its real being, but there have 
been few holding a conception so clear. It is not as men 
enter into the consciousness of the spirit of the nation that 
their march is trammelled and their fetters are forged. It 
is with the free that we are free. There has been no na- 
tion but as the mind enters more deeply into its spirit it 
is imbued with larger freedom. It was not in the Judaic, 
nor the Roman, nor the Hellenic life, that there was the 
forging of bonds for men. Thus there is a value for a peo- 
ple, in the study of the literature and art of Greece and 
Rome, beyond the study of the style and thought of their 
several poets and historians. It is the contact with the life 
of the nation which transcends the life of the individual, 
and is deeper than any separate work in literature and art. 
This representation of Judaic or Roman or Hellenic tram- 
mels has its source in the assumption of a negative notion 
of freedom.^ 

1 The Bible has been removed from the course of study in universities, and then 
from academies, and has no place, corresponding simply as a history and litera- 
ture, to the history and literature of Greece and Rome. A well-known missionary 
in Syria, a recent graduate of Yale College, said to me, that scarcely any scholars 
left their schools in Syria, but with a more thorough knowledge of the Bible thai: 
the larger number of the recent graduates of Yale College. This omission of itj 
study is partly the result of the principle which has referred it exclusively to th 
iphere of the dogmatist and the ecclesiast. The one regards it primarily as a 
iTBtein of dogmas and a collection of isolated proof-texts detached to sustais 



THE BEGINNING AND GOAL OF HISTORY. 391 

There is the record in these Scriptures of the realization 
of history of the family and the nation. There is the reve- 
lation not of a system, but of the divine order in the world. 

The nation has its own place and vocation in history. 
It is as with the individual ; the life of none is the same in 
its outward form and condition, and yet the life of each has 
the same origin, and is subject to the same law of moral 
action. There is thus a work for one nation which is not 
for another, and there is a field of outward circumstance 
which is the occasion for specific laws and regulations ; 
there is a conduct of affairs which concerns it alone, and 

them; and thus it becomes restricted to the schools in which these systems are 
taught and to their exposition onSunda3's; while the other regards it primarily 
as the record of an ecclesiastical institution, and open only to the knowledge and 
understanding of a corporation of priests, and requiring the guidance of ecclesi- 
asts for its explanation, and in connection with a ritualism, to be kept in its special 
eanctity." It is thus removed from its place in the education of the people, and 
left to the doctor and the priest. It has no place corresponding to that given 
it by the great masters of thought, in the greater periods of universities, from 
William of Occam to Hegel. It might be better to study it with the commen- 
tar}"- of Spinoza and Hobbes, than to avoid it altogether. The recent tendency 
is not simply to give their fair place to the physical sciences in their great de- 
velopment, but to exclude the study also of the literature of Greece and Rome; 
the positivism of science in the revelation of the physical world, is preferred 
to the positivism of history in the revelation of the moral world, the dynamic jS 
before the divine. For one who makes the phenomenal process of nature and 
the mind of man as involved in that process, the only object of study and of 
thought, these Jewish Scriptures can have little value. And since their dates 
are not always consistent, and their chronology indicates that it has been hope- 
lessly tampered with, what is their value for those whose census is taken in the 
year 1870 ? There is also no effort to convey information as to the authorship of 
the separate documents, and the situation of the writers, and the various ques- 
tions of the utmost consequence to the critical art of the grammarian. And to those 
who maintain In a superficial empiricism the only principle in which the state is 
formed, they must be but a very disjointed collection of documents, containing 
the record of the migration and fortunes of a very inferior race, who were sep- 
arated from other races by a narrow and exclusive prejudice, and who have 
contributed nothing to the questions which are alone prominent — the so-called 
freedom of trade and the progress of political enlightenment in the combination 
of wealth and labor, and who in superstitious and theological cycles, holding 
through poverty and captivity their faith m a calling in history from an invisible 
King, and their ultimate triumph, refused through every sacrifice wholly to merge 
themselves into the empires around them, and thereb}'^ failed to obtain the vast 
wealth which the traditiors of these empires indicate, and of which the ruins of 
Jieir buildings and walls oear the trace. 



892 THE NATION. 

there is a development in the ages in which it is formed ; 
in each age it has to contend with evils which are peculiar 
to it, and as it rises out of a condition in which slavery and 
violence and the worship of animal forms everywhere 
prevail, it is through its own conscious struggle and 
endeavor. 

There is in the divine order the calling and founding 
of the family. It is the unfolding of the relations of father 
and brother and son. There is a careful tracing of their 
descent in the simple succession of names. There are the 
lives of those who lived as their fathers, and were 
married, and had sons and daughters, and dying were 
gathered to their fathers. Even the sins which mainly 
are described in the book of the Genesis, are those in 
which there is a violation of the moral unity and order of 
the family. 

There is then the record of the calling and founding of 
the nation. It has its foundation in God, it subsists in the 
I am — the everlasting Will. The revelation of God, in 
the calHng of the people, is as the God of their fathers. 
The words which the leader, who was to go forth in the 
beginning of their history, was to say to the people, were 
those in which was the revelation of the Name in which 
the nation stood, — "Behold, when I come unto the child- 
ren of Israel, and shall say unto them The God of your 
fathers hath sent me unto you, and they shall say to 
me What is his name ? what shall I say unto them ? And 
God said unto Moses, I am that I am, and he said Thus 
shalt thou say unto the children of Israel, I am hath sent 
me unto you." ^ The calling of the people was from God , 
the nation is formed in no transient and no external cir- 
cumstance, but in the Eternal, the I am. It subsists in no 
compact of men, but in the everlasting WiU. 

It was in this name they were to confront the tyr- 
anny which was over them, and in it they were to stano 

1 Exodus iii. 13, 14. 



THE BEGINNING AND GOAL OF HISTORY. 393 

against all the tyrannies of the world. God was revealed 
as the Deliverer. It was the redemption of the people ; 
their freedom was a divine gift. The words of triumph 
were, " I will rid you out of their bondage, and I will 
redeem you with a stretched out arm, and with great judg- 
ments." The words which are repeated beyond all other 
memorials are, " Thou shalt remember that thou wast a 
bondman in Egypt, and the Lord thy God redeemed thee 
thence." The rest of the nation was in peace and free- 
dom, and the goal toward which time was to bear them, 
was the sabbatical year, the year of jubilee, in which they 
were to "proclaim liberty throughout the land, and to all 
the inhabitants thereof." ^ 

The succeeding event which is most impressive in their 
history, and that came in the most solemn circumstance 
of nature, was the witness to those elements, which can 
never be separated in the being of the people in a moral 
order. There was at Sinai, in the giving of the law and 
the gathering of the people, says Ewald, a twofold signifi- 
cance : there was the witness to the sacredness of the law 
and the sacredness of the people, — it was an holy law and 
" an holy nation." 

The commandments presume the existence of the nation, 
as they proceed to define its institutes in a moral order, as 
the institutes of labor and rest, of property, of marriage. 
But the people is to remember in its law the living pres- 
ence, the divine Deliverer. The preamble to the law, 
which may never rightly be separated from it, is the declar- 
ation of their freedom as a divine gift ; their freedom is in 
identity with law and can never become the license in 
which man is separated from God. 

The land which the people were to possess was given to 
them from God, and was appointed for them. They 
were to hold it as an inheritance. Yet they were to learn 
hat its possession alone was not the condition cf national 

1 Leviticus xxv. xO. 



894 THE NATION. 

life, that their national being was not the resultant of 
physical circumstance. The unity of the nation was in no 
visible bond, and was determined by no confine of land 
and sea. Their unity and continuity was in God, in the 
revelation which He made to them, " I am the God of thy 
fathers." 

There is in no literature so deep an expression of the 
existence of the nation as an heritage to be transmitted 
from the fathers to the children, but the fulfillment of the 
divine righteousness is always made the condition of the 
permanence of the people in the land. 

The education of the people through the centuries of 
their moral and political advancement, was in the knowl- 
edge of the relation in which they stood to the visible and 
the invisible world. They were learning in their national 
wars and trials, and through all changes and crises, to look 
to a Being who was not made in the likeness of things in 
the heaven above or in the earth beneath, and to know 
Him as their Law-giver and Deliverer and Judge. 

The unity of the nation was not defined in any special 
or temporal limitation. It was not limited to its existent 
occupants ; it was not shut up to " this bank and shoal of 
time." The nation was not, as in the false civilizations 
around it, defined in a merely physical condition. It was 
not as those whose course was only that of a civil cor- 
poration, associated by some external fear, or to obtain an 
individual and common external security, or to promote 
external interests in pleasure or possession. That was 
the character of the material civilizations around them, 
and if the nation was to lose itself in that, it was the 
destruction of its life. It could not continue merely as 
the civil commonwealth ; if it had no aim beyond that, its 
vocation as a nation was gone and it was undone. Ir? 
aU its history it was in contrast to the siu-rounding civili- 
zations. The condition, against the evil of which it wa? 
he witness, began with the purpose " Go to, let us build 



THE BEGINNING AND GOAL OF HISTORY. 395 

a city," and the iiiiity it opposed was that determined in 
the measure of the city walls, as if the origin of society 
was in fear and distrust, and the end was an external 
security through the division of men. The nation was 
formed in the relationships of life, and in the recognition 
of a relation to an invisible one ; it did not exist simply 
as an accumulation of men and in the construction of 
an external order. The circumstance of its beginning 
was not with the "building of a city," but on the wide 
and open plains, and in the journeying through the sea 
and the wilderness. It was only after struggle, and 
through trials and vicissitudes, in which there was the 
recognition of laws, and the institutions of order, and the 
common organization of the people, with noble memoriesj 
and with far hopes for their children, that they came to 
build a city. Then the memorials of the people were 
gathered in it. Yet their unity was not in it, nor de- 
pendent upon it. The nation lived although its walls 
were leveled to the ground, and the stones of its temple 
were scattered and broken. 

The life of the nation was through a course of moral 
conflict and endeavor. It was not as in the civilization of 
the Philistine — an animal existence, with faith only in 
visible things and sunk in the worship of animal forms. It 
was through unceasing wrestling with evil that its advance 
lay. It was not formed in moral indifference. The awful 
gates of the mountains were open before it, and through 
them its journey led. It was tried in great crises. " The 
Lord hath taken you and brought you forth out of the iron 
furnace." 

The national progress is one in which laws and institu- 
tions are acquired ; there is the organization of justice, 
and the form for its administration. Justice is to be exe- 
cuted. " Judges and officers shalt thou make in. all thy 
gates, which the Lord thy God giveth thee, throughout 
thy tribes : and they shall judge the people with just 



896 THE NATION. 

judgment. Thou shalt not wrest judgment ; thou shalt 
not respect persons, neither take a gift : for a gift doth 
bhnd the eyes of the wise, and pervert the words of the 
righteous." ^ The maintenance of justice is necessary to 
their continuance in the land. 

The universahty of law is affirmed — the requisition of 
all men to a judgment by the law, and the equahty of all 
men before the law. It is repeated from page to page, 
and there is warning against its denial, and the peril 
of its forgetfulness. "One law shall be to him that is 
home-born, and to the stranger that sojourneth among 
you." 2 " One ordinance shall be for you of the congre- 
gation, and also for the stranger that sojourneth with you, 
— an ordinance forever in your generations ; as ye are, 
so shall the stranger be before the Lord."^ "Judge 
righteously between every man and his brother and the 
stranger that is with him. Ye shall not respect persons 
in judgment ; ye shall hear the small as well as the 
great ; ye shall not be afraid of the face of man, for the 
judgment is God's." * The words of the greatest of its 
kings, in his farewell to the people, are, " The rock of 
ferael spake to me, — he that ruleth over men must be 
just, ruling in the fear of God."^ There is a singular 
beauty, among sentences of lofty severity, in the imagery 
in which the equity of the Judge is portrayed ; his judg- 
ment must be clear as the Hght, " as a morning without 
clouds," and yet, " as the tender grass, springing out of 
the earth, by clear shining after rain." 

The law is represented not as abstract, but as the man- 
ifestation of a righteous will, and therefore it is a power 
which will not conform to the arbitrary schemes, nor sub* 
seirre the arbitrary aims, of men. It is the affirmation of 
ft righteous will against the self-willed powers which would 
•end society. It can be severed by no individual caprice 

1 Deuteronomy xvi. 18, 19. 2 Exodus xii. 49. » Numbers xr. 15 
* Deuteronomy i. 16, 17. * Samuel xxiii. 3, 4. 



THE BEGINNING AND GOAL OF HISTORY. 397 

or individual interest. The ruler is not above the law, 
but is the minister of the law to maintain it unswervingly, 
and is " to keep the words of this law, and these statutes 
to do them, that his heart be not lifted up above his 
brethren, and that he turn not aside from the command- 
ment to the right hand or to the left." ^ 

The people in its organization was separated into com- 
munities or tribes ; but there was one tribe dispersed 
through the whole as the witness of its unity. Its exist- 
ence was the witness that the strength of each stood in its 
relation to the whole, and the strength of the whole in its 
relation to an eternal King. It was a relationship. It 
was only in the denial that the unity of the nation was 
in the living and eternal Will, that they could be separated 
from God, and therefore from each other. The unity of 
the nation was not formal, that it should find in society an 
external limitation in any organization. It was formed as an 
organic whole. Aaron was chosen as the helper of Moses.. 

There is the guidance, the care and love which is 
revealed to nations often in the darkest hours, and in 
apparent defeat, through the providential history of the 
people. There were the memorials of the renewal of the 
nation's faith when it was assailed by foes without and 
within. " I did bear you on eagle's wings ; " and again, 
"in the wilderness thou hast seen how the Lord thy God 
did bear thee, as a man doth bear his son, in all the way 
that ye went, until ye came unto this place." 

The nation is inclusive of the whole people in its divine 
foundation and its divine end. There is no difference of 
wealth, or race, or physical condition, that can be made 
the ground of exclusion from it. There is none in it that 
can be isolated from the privileges and the duties of the 
covenant in which it is formed. " Ye stand this day, all 
of you, before the Lord your God ; your captains of your 
tribes, your elders, and your officers, with all the men of 

1 Deuteronomy xvii. 19, 20. 



398 THE NATION. 

Israel ; your little ones, your' wives, and the stranger that 
is in thy camp ; from the hewer of thy wood unto the 
drawer of thy water ; that thou shouldest enter into cov- 
enant with the Lord thy God, and into his oath which the 
Lord thy God maketh to thee this day, for a people to 
himself, and that he may be unto thee a God, as he hath 
said unto thee, and as he hath sworn unto thy Fathers, — 
to Abraham, to Isaac, and to Jacob." ^ 

The nation was to maintain a divine calling, which was 
manifest through all its history. It had a work which was 
its own and which it could not transfer nor abandon. If 
it betrayed the purpose to which it was called, it was no 
longer to have place in the power of history, but its name 
was to become a name of scorn, a proverb and a by-word 
among men, and it was to meet with shame and contempt. 
It was not to be diverted from a moral purpose by a 
lower object, nor to apprehend its end in the mere accu- 
mulation of material wealth, nor in the satisfaction of a 
physical existence. There was the most solemn warning 
against the gathering of wealth and possession for its own 
sake, and against the forgetfalness that it was the gift of 
God and involved duties and obligations.^ The moral ob- 
ligation which was manifest in the calling of the nation, 
was to be maintained in its immeasurable supremacy, as 
beyond the acquisition of wealth, and to be guarded that 
it should not be lost in some selfish end. " The graven 
images of their gods shall ye burn with fire ; ye shall not 
desire the silver or the gold that is on them." ^ 

The nation was formed in the conditions of a moral life, 
and there were powers to be employed and energies to be 
unfolded. Its freedom was wrought through a divine 
deliverance, but as in the nature of freedom, it was not 
in the mere apathy and passivity of the spirit, it was not 

1 Deuteronomy xxix. 10, 13. 

MUton says of Deuteronomy xxviii. : " A chapter which should be read again 
•nd again by those who have the direction of political affairs." — Treatise <m 
Christian Doctrine, etc., ch. xvii. 

• Deuteronomy viii. 11, 18. 



THE BEGINNING AND GOAL OF HISTORY. 399 

tho invitation to repose. It came with the opening of the 
wares of the sea and the long march, and as men were 
bidden to "flee by night and by day." Their Passover 
was to be eaten by men with theii* loins girded and their 
staff in their hands, — "ye shall eat it in haste." 

Since their course was a moral disciphne, every diversion 
from it was to bring divine judgments upon them, as they 
had come upon the peoples around them, and these judg- 
ments were not in their separation from other peoples but 
in the manifestation of a universal law. In the forgetful- 
ness of their vocation the doom which had come upon these 
corrupt communities was to come upon them. " And it 
shall be if thou do at all forget the Lord thy God, and walk 
after other gods, and worship them and serve them, I tes- 
tify against you this day that ye shall surely perish. As 
the nations which the Lord destroyeth before your face, so 
shall ye perish, because ye would not be obedient unto the 
voice of the Lord your God." 

The progress of the nation through its own vocation is 
in the reahzation of a moral being and order. As it has 
its own work in its own place and age, there are institu- 
tions and regulations especially adapted to it which are 
transient and local. It is formed in the life of the spirit, 
and is not to be merely the exposition of a system of un- 
changing laws and regulations. It is thus that there are 
laws and regulations which are moulded in the measure of 
the development of the nation, and thus it is said that 
Moses gave them certain forms and regulations for the 
" hardness of their hearts ; " — not for their wickedness, 
which only judgment can follow, but for their rude and 
obdurate condition. And everywhere there was violence 
and slavery and rapine and war, and private revenge, and 
there were evils which were the special characteristic of 
the age. These were not the institutions of the nation, 
but they prevailed everywhere on the earth, they were the 
wickedness in which the world lieth. Thus slavery was 



400 THE NATION. 

not the creation of the law of the nation^ but ahready ex- 
isted, and the laws and institutions of the nation tended tc 
ameliorate its condition, and ultimately to abolish it. Thua 
also war and private revenge were not the institutions of 
the nation, but the nation in its own being was in conflict 
with them, and its normal process tended to their removal. 
The nation was called out of a condition of slavery into 
freedom. It might not, since it was formed in the condi- 
tions of history, remove these evils in one moment, but 
its whole course, its institutions and its order, tend to their 
mitigation and ultimate extirpation. Thus against wild 
and unchecked private revenge, it opens cities of asylum, 
and to a system of slavery it places as a terminus the sab- 
batical year, which is hailed as the year of jubilee, and 
while they are called to battle, and confess One who is 
with them in the battle, that they shall not turn nor be 
affrighted at their enemies, yet they look forward to the 
time when there shall be "peace in all their borders." 

There is in the progress of the nation the ampler rec- 
ognition of its calKng. It was to bear witness to a divine 
King and Deliverer and Judge, against those who would 
subject the spirit of man to the things which are seen. It 
was to bear witness to a righteous Will, which would estab- 
lish righteousness on the earth, against those who assumed 
only a momentary and transient will, or the self-will of 
men. It was to bear witness to Him and his righteousness 
against those who corrupted society, those who took bribes, 
those who removed landmarks. The nation was the wit- 
ness that these could not have their own way on earth, 
that there was a righteous Will which would regard them. 
And if the people were in complicity with these, the judg- 
ments they had uttered against others were to fall upon 
themselves. There was then for them a plague of fire and 
a plague of blood ; that two-handed engine at the door 
which smites once and smites no more. 

The nation is formed as a moral person. The element! 



THE BEGINNING AND GOAL OF HISTORY. 401 

of the deepest personal being are ascribed to it, and there 
is no personal quality but is demanded of it. The condi- 
tion of the moral judgment pronounced against it is in its 
being as a moral person. It exists in the workmg out of 
a divine vocation and a divine election in history. Its con- 
science is not the reflection of a law of expediency, a mere 
empiric graduated by expectations of profit and loss, but 
the voice of very God speaking to the nation in and 
through its history. Its work in righteousness was not in 
the conformance to an abstract law, but in the fulfillment 
of a living, a righteous and eternal Will. 

The nation is represented as a moral person. It is de- 
clared to be a holy nation. It is called of God ; it is called 
to be holy as He is holy. In view of the evils in the land, 
to call it a holy nation may seem most unreal. The im- 
becility of the ruler of a people, the fi:'aud and betrayal 
introduced into the election of a ruler by a people, the sub- 
jection of the individual conscience to the ends of parties and 
sects, the prevalence of corruption and bribery and robbery 
among rulers and legislatures, may seem often to bring a 
doubt of the reality of a divine government on the earth, 
and to contradict the assertion that the nation is a moral 
being, and is formed in a divine relation. There is no 
concealment of the evils spreading through the land by 
those in whom this assertion is clearest. It is raid that 
" there is no truth and mercy or knowledge of Goa in the 
land ; by swearing and lying and killing and stealing and 
committing adultery, they break out ; it is like people like 
priest, and the prophets are with them ; the king is glad 
vrith their wickedness, the king is a drunkard." ^ The 
prophet who had declared this condition, yet could declare 
that the nation existed in a relation to a divine King, and 
it was this which made the revolt and the corruption of the 
land so fearful. In hs sin there was the violation of the 
law of its life, the contradiction of it? being. It had been 
1 Hosea iv. 1, 2 ; rui. 3. 



\ 



402 THE NATION. 

called a holy nation. It was bound by boly bonds in a di- 
vine relationship. It was brought into a holy estate. In 
the relationship in which it exists, there is the revelation 
of its true being and the witness to its unity. The rep- 
resentation which is the sign of its relation to its divine 
Lord, illustrates the nature and the effect of the sins of the 
nation, the root of its crimes and the result. They are 
denounced as the adulteries and the whoredoms of the 
people. There is the violation of the bond in which* its 
relation is defined. It was the faith that the nation was 
a holy body, and that it was constituted in a holy rela- 
tionship, that was the strength and stay of the prophets in 
the darkest hours. In its analogy with all human relation- 
ships, the prophet who gave expression to the divine rela- 
tion of the nation, was one who was to learn in his own 
life the truth which was his rest in the evils of the age ; 
when his own house was made desolate, he could not for- 
get that it was a holy bond which bound him to her whose 
crime was the contradiction of the relation which still in 
its nature was sacred, and the memory of the past and the 
existent relation to his children, remained as the evidence 
to him of this ; in this there was the reconciliation of 
the words which he could utter in the deepening wicked- 
ness of the land. The strength of the nation was always 
in the faith that it was a holy body, that it was formed in 
a holy relation, that in its very being it was in conflict 
with the corruption and crime and violence that filled the 
earth.^ The peril was always in its forgetting or denying 

1 See Maurice, Prophets and Kings, pp. 196-230. 

" These bonds might be regarded as artificial and imaginary; they would be 
regarded so the moment the nation had become incapable of counting anything 
as real that was not visible; the moment it had passed into an utterly idola- 
trous condition of mind. But their reality would be proved by the gradual dis- 
solution of all other bonds; by the growing tendency in the members of the 
nation to deny that they stood in any relation to each other; by the practice of 
the majority assuming that each man lived for himself; by the strength and 
popularity of doctrines which justified that practice; by facts which showed 
that those who treated the divine covenant as a fiction became themselves th« 
•port of every fiction." —Maunce, Prophets and Kings, p. 205. 



THE BEGINNING AND GOAL OF HISTORY. 408 

tills, or seeking its end in some merely material advance- 
ment, in which it could no longer contend with the evil in 
the world. It was the fact that it was a holy nation, that 
was the source at once of the hopes and the warnings of 
the prophets. And in evil days, and the most disastrous 
periods, and in the most utter corruption, when bribes were 
taken by those in power, and unjust judgments were ren- 
dered, and fraud and oppression and violence filled the 
land, in the character of the judgments pronounced upon 
the nation, its nature is revealed. In the awful light of 
the moral judgments which fill the burden of the proph- 
ets, there is alike the manifestation of its real being, and of 
its eternal relationship, and its divine estate, and its ances- 
tral honors, and the glory it had known, as well as its 
weakness and pollution and shame. 

The course of the nation in history was not itself with" 
out illustration of the foes which threaten its destruc- 
tion. In a later age it was endangered and at last it was 
divided by secession. The crisis is represented as the 
consummation of a wickedness which had been increasing 
in the land ; and when the event actually followed, it was 
but the external manifestation of the sin to which the peo- 
ple had yielded a dominion over themselves. It was in 
its action and its result the culmination of great crimes. 
It was when the people had lost their faith in an invisible 
king, and had sunk into an idolatrous condition of mind. 
It was when the consciousness of the unity of the nation 
and its continuity in God had become utterly obliterated. 
Then its disseverment came from God ; the real unity and 
continuity of the nation in God was already no longer 
acknowledged, but in its stead only the artificial bond of a 
formal organization, and there remained only faith in vis- 
ible things, and the idolatrous condition which is its se- 
quence. There was no longer the consciousness of the 
divine guidance of the nation and its divine vocation in 
history, and a living relation in it of the fatfters to the 



404 THE NATION. 

children ; and the actual secession was then only the out- 
coming of the actual moral dissolution of the people. The 
continuance of an external order and decorum might only 
conceal, while there was no effort to overcome, the internal 
corruption and the evil consuming all within. But the issue 
of the event is manifest in the most awful judgments of 
history. The record is borne on with the heavy burden 
of the sorrows of the people through all the centuries. 
There came, as the spirit of secession disclosed its conse- 
quences, the loss of all consciousness of a relation to the 
past, and of the unity and continuity which was in the 
divine will. The leader whose personal ambition was 
foremost in the secession, and through whom it was ef- 
fected, was always referred to in the long refrain, which 
is repeated by the prophets from year to year, " Jeroboam 
who made Israel to sin ; " and of succeeding kings it is 
said, "he walked in the way of Jeroboam and of his sin, 
wherewith he made Israel to sin." The narrative of those 
who seceded is one of rapid and of deepening degradation, 
checked by no higher purpose and stayed by no regener- 
ative power. It closes at last in their overthrow and utter 
destruction. Their idolatry becomes more gross as they 
sink into a merely animal condition, and as in the empires 
around them, there is only the recognition and worship of 
the animal world. Their leader made images of gold, 
saying, " It is too much for you to go up to Jerusalem : be- 
hold thy gods, O Israel, which brought thee up out of the 
land of Egypt." ^ In the judgment which comes, they are 
themselves divided and swept utterly away. The most 
fearfiil imagery lifts the veil, which falls, not to be lifted 
again. " The Lord shall smite Israel, as a reed is shaken 
in the water, and he shall root up Israel out of this good 
land, which he gave to their fathers, and shall scatter then: 
beyond the river. And he shall give Israel up, because of 
the sins of Jeroboam, who did sin and who made Israel tc 

1 1 Kings xii. 28. 



THE BEGINNING AND GOAL OF HISTORY. 405 

Bin." * The result of the secession has the deepest histor- 
ical significance. There were associated in the secession 
ten tribes, and only one tribe remained, but the nation itself 
was not therefore utterly to perish. Its historical work 
is continued in the one tribe that remained of all the peo- 
ple, and the vocation of the nation and the divine cove- 
nant with the fathers in which the nation stood was ful- 
filled with it. In it there is the unfolding through the 
advancing years of the purpose of the nation in the world, 
and in it alone there is maintained an unbroken relation 
with the past and the future, in the greatness of their an- 
cestral memories and their immortal hopes. Although its 
life as a people is never again to be what it might have 
been, yet with it is the history of the people fulfilled. The 
record of the seceding tribes is one of uncertainty and of 
gloom deepening in its intensity, until at last they are 
hidden from sight and pass into outer darkness, beyond 
the line in which is the development of history. Their 
steps are gradually obliterated, and there is at last no 
vestige left. The search for them is a vain and idle in- 
quiry, and becomes the fool's errand of history. To the 
darkness that overtakes them there is no uplifting. 

The immediate result of the spirit which led to the sep- 
aration of the people, appears in the formation of confed- 
?Tacies. It is the working of a confederate spirit. It is 
the sequence of secession, and involved in the evil which 
had led to the dissolution of the whole .^ The wars which 
foUow are unrelenting and conducted with a hostility 
which allows no ground of reconciliation. These wars are 
to settle no question of boundaries, nor are they for the 
adjustment of interests which had been held in common, 
but the aim of each is the utter extinction of the other. 
They engage for this object the aid of enemies, with whom 
the nation had contended in all its greater epochs. They 
ieek the intervention of foreign powers, and league them- 

l 1 Kings xiv. 15, 16. 2 2 Kings xvii. 22, 23. 



406 THE NATION. 

selves with foreign idngs. The treasures of the temple, 
which was a witness to their unity, are plundered to hire 
the aid of foreign mercenaries. In these confederacies the 
seceding tribes are lost, and their record is ended with the 
words thrice repeated, " The Lord removed them out 
of his sight," and it is only said of them, " He delivered 
them into the hands of the spoilers, for they walked in the 
sins of Jeroboam, which he did; they departed not from 
them, until the Lord removed Israel from out of his sight, 
as he had said by all his servants, the prophets." ^ Yet 
on to the close — and there is scarcely any event of deeper 
pathos, — the witness that the foundation of the unity of 
the nation was not in self-will and a self-seeking spirit, but 
in sacrifice, is continued ; wherever the true altar is built, 
it is still always of " twelve stones, according to the num- 
ber of the tribes of the sons of Jacob." ^ 

The nation is represented as formed in a divine relation. 
It is not constituted in the distinction of a race, nor in 
that is there the comprehension of its unity and its aim. 
In its development it is not determined by a racial law. 
The glory of its history is not the pride of a race. There 
were events of the most impressive circumstance in their 
beginning, to attest that the nation was , not born of the 
flesh, that it was not comprehended in a physical relation 
to a certain ancestry, and that its continuance was not de- 
fined in a certain line of physical descent. The warn- 
ing not to identify the nation and its rights and privileges 



1 1 Kings xviii. 31, 33. 

2 " The confederacy of the Samaritans with the Syrians against Judah, was en- 
countered by the confederacy of Judah with Assyria, against Israel. It was no 
mere border war. Each sought the extermination of the other. These confed- 
eracies denoted the spirit at the root of all the crimes, which the Prophet had 
deplored and denounced. 

" The present scheme of Samaria to extinguish its rival even at the cost of 
giving an ascendency to the uncircumcised king of Damascus, showed clearly 
enough that the last link of brotherhood was broken, because the last feeling of 
the divine calling which had made them a nation was gonfe " — Maurice, PropheU 
and Kings, p. 249. 



THE BEGINNING AND GOAL OF HISTORY. 407 

witli a physical succession, stands in awfal solemnity in 
their history, as if in its clear outline wrought in the strong 
lines of some sculpture, against the stillness of the desert, 
when the only one in the line of its physical descent, the 
child of the bondwoman, went forth into the solitude. It 
was not the child of the flesh, but the child of the prom- 
ise that was the inheritor of the national covenant. Those 
whose distinction was only that of a race, were to pass into 
a merely tribal condition, as the Ishmaelite. In the as- 
sumption of its precedent in a racial character, the nation 
was severed from its divine foundation. Then Abraham 
and not God was regarded as the founder of the nation.^ 
In the assumption of its foundation in a physical condition, 
and its unity and continuity in a physical basis, it became 
as the heathen around them, and had no other ground 
than they. The nation was formed in the divine covenant ; 
its conception was lost in that ethnic claim. Thus their 
first great statesman made the pride of race and the dis- 
tinction of physical descent, the object of scorn, and gave 
expression to it in indelible forms in the service of the 
people. They were bidden to bring gifts of the fr^uits of 
the earth to the altar, with the words, " a Syrian ready to 
perish was my father." ^ There can be scarcely any 
measure for the contempt in these words, when a Jew, 
representing the nation as formed only in a physical con- 
dition, is described as a Syrian, and his great ancestor as 
one " ready to perish." And by all the prophets this pride 
is denounced, and in the larger humanity of its later ages, 
there is the ampler expression of the worth of a man. 
There is the assertion that in assuming a national founda- 
tion in the possession of certain racial powers, and claiming 
it through a pedigree to Abraham, there is the rejection 
of the divine relation in which the nation subsists. It 
is a journeying with one who is driven into the solitude 

1 See Maur:e, Prophets and Kings, p. 309. 

2 Deuteronomy xxv» 5. 



408 THE NATION. 

of the desert, and there is no promise beyond. The de- 
nunciation of this claim is sometimes repeated, as if in it 
there was the loss of all which the nation in the fulfillment 
of its promise could bring, and its end was to be realized by 
those who were aliens from the house of Israel, — "Doubt- 
less God is our Father, though Abraham be ignorant of us, 
and Israel acknowledge us not." And when, as the na- 
tional spirit was decaying, the pride of race became more 
and more exalted, the last of its prophets was to say to 
them in the streets of their cities, " God out of these 
stones can raise up children unto Abraham." 

The nation is represented from its beginning, as in its 
being, in contrast to a false and material condition. It is 
the conflict of the nation with the spirit which would build 
a Babel upon the earth. It is a society which is of divine 
institution, and formed in its unity and continuity in a 
divine relation, and in the realization of relations in hu- 
manity, in contrast with a condition in which fear and 
self-interest and ill-will are the prevailing motives in the 
combination of men, which is constituted in the con- 
federation of separate interests, and for the pursuance of 
selfish ends, to subserve only the pleasure or the posses- 
sion of men. It is the battle borne on through the centu- 
ries of a society which is formed in the recognition of a 
divine vocation, and of a law of righteousness and free- 
dom, with the forces of dissolution. It is the great bat- 
tle of humanity with all that oppresses and degrades it, 
— the battle of Judaea with Babylon. The one appre- 
hends humanity as it is in the divine image, and its rights 
and its sacredness which society is to realize ; the other 
assumes in humanity an existence only in the physical 
course of nature, and would stamp upon it the image 
of a Babylonian spirit. The one is the life of the nation^ 
which can only build on the divine foundation ; the othei 
would build of its own materials, the brick and mortar 
which it has gathered, a city which will reach from the 



THE BEGINNING AND GOAL OF HISTORY. 409 

earth to the heavens. It is this with which the nation has 
to contend in every age, — the spirit which, confessing 
only a material bond, will bring men at last to worship 
that. 

The formation of the nation in its moral being and 
order, is the source of the sacredness which attaches 
always to the land and the capital, and the public memo- 
rials and the great events in the history of the people. 
Their sacredness was derivative from their association with 
the nation ; but the latter was not conditioned upon them. 
The land was sacred, but they were constituted as a nation 
before they entered into the possession of it ; and there 
was promised to the nation a permanence beyond that of 
the mountains and the hills. The events in their national 
history were the witness of the divine presence, the sacra- 
ments of the Lord of Hosts. The capital was the holy 
city, and yet it was not until far on in their history that it 
was built, and they were to learn that the foundation of 
the nation was not in the stones which they had laid, and 
that its unity was not defined in city walls. The work of 
history was to be wrought in the advance of the nation, 
and its triumph was in the exultant anthem, " Open ye the 
gates, that the righteous nation which keepeth the truth 
may enter in." The nation persisted through all the 
vicissitudes of time. The hope of the Prophets was that 
it w^as immortal. It was sustained through conquest and 
captivity. There were those who kept its ancient truth, 
when they were driven to the secret heights of its moun- 
tains, and its Hfe did not wholly perish in oppression, or in 
the interruption of its government, or the destruction of 
the city, or the leading away of the people into strange 
lands. There was still in the most evil days a remnant left. 
Through changes, in which the whole external fabric and 
the institution of its government was destroyed, there con- 
tinued the being of the nation. Its life was beyond the ex- 
emal and the formal constitution, an( wa^ not conditioned 



410 THE NATION. 

upon that. It was the spirit of Pharisaism, — and it wa8 
originally a political Pharisaism, which holding in identity 
the moral and the legal, attached a sacredness only to the 
latter, — the letter of the law, — and conceived the life of 
the nation as conditioned upon that. 

The process which sought its conclusion through the 
synthesis of political science and the formal definitions of 
politics, comprehends no representation of the nation as it 
is found in the record of the first nation. The terms of a 
formal method are poor and empty before its realism. A 
writer, who may be taken to represent recent phases in 
political thought, has described the influence in pohtics of 
what he calls " the sentiment of nationaHty." ^ The anal- 
ysis of the nature and eflPect of the " sentiment of nation- 
aHty," offers no guide to the interpretation of history in 
the past or in the present age. There is in this ancient 
record the presentation of the being of the nation in its 
origin and its realization in the life of humanity. There 
is the manifestation of the nation, not as the resultant of 
individual desire or emotion, nor as comprehended in the 
definitions of a formal science or in the forms of law, but 
as in its realization in history. 

The law and the principle which are presented are uni- 
versal. They are held in no restrictive conception as in 
the notion of the ecclesiast, but are sustained in a universal 
conception. The prophets hold in them the interpretation 
of all history. They allow no other, but apply these to 
every people, and in their light alone they judge the widest 
sweep in their political horizon. The supremacy of their 
principles is presumed in their universal character. They 
are declared to be universal, and to show the ground of the 
life of every nation.^ 

1 J. S. Mill's Representative Government, ch. xvl. on " Nationality." 

2 Jeremiah viii. 7, 10. 

There is no form and no external order for the nation which is di\-inely gives 
te alone valid. It is sometimes said that since the Christ is represented as a King 



THE BEGINNING AND GOAL OF HISTORr. 411 

The nation in its historical life and calling moved toward 
the coming of Him in whom there was the manifestation 
of the real — the divine life of humanity. The work of 
Judaea and Greece and Rome had its unity in the Christ, 
who is the centre of history. The title written of Him in 
his perfected sacrifice, was the King of the Jews, and the 
words to which history was to bear witness in the ancient 
nations, were written in Hebrew, and Greek, and Latin. 
And as the life of the first nations was, so also shall that 
of the last nations be. As it was toward his coming that 
the nations of the ancient world moved, so toward Him, 
and still in his coming, do all the nations move. 

and his power in the world as a kingdom, that therefore the form of a monarchy 
is to be universal, and again from certain expressions in the Prophets, especially 
in Jeremiah, that the authority is to be that of an elective magistrate, as in a 
Kepublic; but the lesson constantly repeated is not of the special validity of an 
exact and prescribed form, but that the form is moulded by the age and by the 
spirit of the people, and the nation persists through changes in its external order 
and administration, and its continuity is maintained through them but is not 
conditioned upon them. 

On the universal application of the representation in the Old Testament, and 
its relation to the character of the individual, Mr. Maurice says: "I apprehend 
that we shall learn some da}' that the call to individual repentance and the 
promise of individual reformation, has been feeble at one time, productive of 
turbulent violent transitory effects at another, because it has not been part of a 
call to national repentance, because it has not been connected with a promise 
of national reformation." 

" We must speak again the ancient language, that God has made a covenant 
with the nation; if we would have an inward repentance, which will really 
bring us back to God -, which will turn the hearts of the fathers to the children, 
and the children to the fathers ; which will go down to the roots of our life, 
changing it from a self-seeking life into a life of humility, and love, and cheerful 
obedience, which will bear fruit upward, giving nobleness to our policy, and lit- 
erature, and art; to the daily routine of what we shall no more dare to call our 
»ecular existence." — Prophets and Kings, p. 404. 

Mr. Disraeli says, — and this is presented as a principle of universal application 
in the life of nations, and not in the definition of a racial law, and it is not the 
language of a mystic or an itinerant thinker but a statesman who has embodied 
his thought in the real process of the state, "It may be observed that the de- 
cline and disasters in modern communities, have generally been relative to their 
degree of sedition against the Semitic principle. England, notwithstanding her 
deficient and meagre theology, has always remembered Zion. The great 
transatlantic Republic is intensely Semitic, and has prospered accordingly. 
This sacred principle alone has consolidated the mighty empire of all tlw 
RuBsias." — Life of Bentinck, p. 81. 




412 THE NATION. 

The relation of the Hebrew and the Christian nation is 
not one of difference, but of development. It has its con- 
dition in the higher and ampler revelation. The one wa3 
governed by an invisible ruler, and moved toward his com- 
ing ; the other is governed by a ruler who has manifested 
himself to the world, and is coming in the world. The 
one looked with faith toward his coming ; the other looks 
to . Him as to one whose power has been revealed on the 
earth and in its redemption. The one was subject to an 
external authority, — the " Thus saith " of the divine word ; 
the other is subject to a law which is manifested in the 
spirit, it is written in the minds and in the hearts of men. 
The body has become a temple of the spirit. The word is 
uttered not from heaven above, but is nigh unto men and 
on their lips. The work is to be the fiilfillment of the law 
of the Christ who is the only and the actual head of the 
state. 

There is always a tendency to return to the Jewish or 
Grecian, or Latin form, but it is in the denial of the real 
presence of the Christ, — the rejection of the only and 
the actual King. In this reaction the nation loses its 
spiritual power, it is merged in a mere formalism, and is 
no longer in a living relation to a living and eternal Will. 

The law by which the nation is judged, is the law which 
the Christ has revealed in his humanity. In Him the divine 
unity and the divine relations of humanity are revealed. 
He has shared the life of man, — the life of every man. In 
Him humanity is manifested in that infinite sacredness 
which it has in the divine and eternal image. It is only 
as the nation recognizes the law of humanity which He 
has revealed that it attains the realization of its being. 
It is only as the nation acknowledges in history the infinite 
worth of humanity which He has manifested, that it car, 
become a power in history, which is but the realization of 
the divine redemption which He has wrought.^ 

1 Matthew xxv. 32, 45. 



THE BEGINNING AND GOAL OF HISTOKY. 413 

The crises of tlie progress of nations in the deliverance 
of humanity, are described in the sign of his power, — 
the J are the days of the Son of Man, who is revealed as 
the eternal conqueror. In the overthrow of the tyrannies 
which have oppressed and degraded men, and of the lies 
and frauds by which nations have been deceived, and in 
the rising of new hopes, and the unfolding of new ener- 
gies, there is the advent of the Christ, — the coming of 
the Son of Man. 

The only foundation then upon which man can build in 
the life of the individual or of society, is in Him ; " other 
foundation can no man lay than that which is lying." It 
is in the law which is revealed in the Christ that the sol- 
idarity of human society is manifested. It is formed in no 
selfish principle. It becomes evident that no man liveth 
for himself. Each is the minister of the whole. In the 
profound words of M. Comte, it is seen that " to live for 
others," is but another form "of living by others." The 
paradox is verified, he that loseth his life shall find it. The 
foundation is that which the builders rejected. The cor- 
ner-stone is not in slavery, but in Him who died on this 
earth as a slave, that He might redeem all. It is the power 
which is manifested in sacrifice, and the law of service is 
the law of power. It is the mightier power, and " on 
whomsoever this rock shall fall it shall grind him to pow- 
der." 

The nation is lifted above the divisions and distinctions 
of race. There is the assertion of the physical unity of 
humanity, and of the divine determination in the times of 
the existence and the bounds of the dwelling of nations.* 
And the people that comes to believe that there is a pur- 
pose in the ages, will watch the " signs of the times," for 
the attainment of the purpose which is given them, and 
In the faith that their boundaries in the fulfillment of their 
vocation are divinely appointed, they wiU guard them well, 

Acts xyii. 2t 



414 THE NATION. 

The nation is formed as a power on the earth. It is 
invested with power of God ; its authority is conveyed 
through no intermediate hands, but is given of God. It 
is clothed with his majesty on the earth. It is ordain«d 
of God to do his service. It is Ocov SiaKovos'^ 

The reaHzation of the redemptive purpose in history is 
represented under a pohtical form. The Christ is a King, 
and the reaHzation of his redemptive work is a kingdom. 
The type expressive of his power is drawn from the poht- 
ical life of man. But there is in this only the assumption 
of the political form which had attained the most nearly to 
a universality in history. The divine power has, m the 
Christ in this form, only its earthly representation. It is 
the power of one who, in his own divine and eternal being, 
is the only source of power. 

The end toward which the nations in the earlier ages 
moved, and toward which all the nations move, — the centre 
of history, — is the Christ. The revelation is in a Person. 
The manifestation which kings and prophets waited for, 
and which all the types and traditions of the hope and 
longing in history foreshadowed, is in the divine Person. 
The revelation is not in a divine system, nor a divine form, 
nor a divine idea. In the divine relationship, which is 
manifested in the Father and the Son and the Spirit, 
there is the foundation of humanity and the realization of 
the human personaHty. In the Christ there is the man- 
ifestation of the divine origin and relations of humanity, 
and the eternal life which is given to it ; in Him it 
overcomes the evil of the world, and is victorious over 
death, and in the power of the resurrection is risen with 
Him, and ascending with Him, is glorified with Him in 
the glory which He had with the Father before the world 
was. Its life is still only in the realization of personality, 
— in the obedience to his will, in the doing of his work 
after the law which He in his own person has revealed. 

1 Romans xii. 5. 



THE BEGINNING AND GOAL OF HISTORY. 415 

In this only there is the reconciliation of freedom and law, 
the law of the spirit, the law which is laid in personality ; 
m this only does personality subsist in those relations 
which are necessary to its being ; in this only there is the 
unity, Avithout the contradiction, of humanity and person- 
ality. Therefore the nation, as it has its end in the moral 
realization of the life of humanity, is to regard each indi- 
vidual person also as an end, for there is for each the infinite 
sacredness which is revealed in the Christ, ^ the Life of 
humanity. The Christ who is declared to be the head 
of humanity " is the head of every man." In the Christ, 
there is the unity and foundation of humanity in its divine 
origin, and the realization of personaHty is in its redemp- 
tive life. 

In the Christ there is the revelation of the divine life of 
humanity. It is held in no abstract and formal concep- 
tion as the evolution of a logical sequence ; it is held in 
no vague and empty conception, as in an unhistorical 
existence ; it is the resultant of no numerical estimate ; 
it is no indefinite and unlimited being in which the con- 
sciousness of the individual is lost ; but there is the revela- 
tion of humanity in its realization in personality, in its 
divine relations. In the Christ as the Prophet, and Priest, 
and King, there is alone the source of the prophetic, and 
priestly and kingly powers in humanity. The comprehen- 
sion of humanity in an isolated individuahsm is false and 
unreal. It is the source only of an evil egoism. It is the 
lord of division. 

It is only as the nation has for its end the fulfillment in 
its moral being of the life of humanity, that it has its real- 
ization in history. It is in its work alone, in the fulfillment 
of the will of the Christ, that i^ becomes a power in the 
reahzation of his redemption, which is the hfe of history, 
and in which humanity alone has the foundation of its 
unity. The work which is for humanity, in its simplest 
and widest form, is the work for and of the Christ ; he 



416 THE NATION. 

has himself declared his very oneness with humanitj, as 
the law by which the nation is to be judged.^ 

The nation is to work in the realization on the earth of 
his kingdom, who is the only and the eternal King. It 
becomes then no more the kingdom of this world, but the 
Kingdom of Him whose reign is of eternal truth, — the 
reign in which, in the realization of personality, there is 
the freedom of man. Its advance is only in his advent, its 
destination is toward Him. Its new ages are the days of 
the coming of the Son of Man. Its freedom is only in his 
redemptive strength. It is no more the life of the first 
man, of the earth earthy. 

The nation in the last as in the first age, has still the 
source of its strength only in its relation to its divine Lord. 
The danger is stiU in the denial or forgetfulness, in a mate- 
rial existence, of this relation. The representation of the 
sins of Judaea, in their principle and their effect, is that of 
the sins of every nation. In the violation of the divine rela- 
tion in which the nation is formed, and the rejection of its 
covenant, the sins of the nation are denounced as its adulte- 
ries.2 

The conflict of the nation is still borne on to the close 
of history in the antagonism to a false civilization. It is the 
conflict with a material civilization which would build on 
the earth a Babylon. It is as the nation yields to the spirit 
of a Babylon that there is the loss of its freedom and its 
moral being. It is described as one who is enchanted and 
demented and besotted and deceived, as " drunk of the 
wine of the wrath of her fornication." It is only as it con- 
tends against this spirit that it becomes a power in the 
moral life of history, that it follows with the armies of Him, 
who "in righteousness doth judge and make war." In 
Him the victory whose sign of conquest is the coming of 
the Son of Man, — the victory of humanity, — is assured. 
The imagery illustrative of the most actual condition, por- 

1 Matthew xxiii. 46. 2 Revelation xviii. 3. 



THE BEGINNING AND GOAL OF HISTORY. 417 

trays the downfall of Babylon in the battles of the centuries. 
It is described as invested with the circumstance of a false 
and material civilization, "the great city that glorified 
herself and lived deliciously," that saith, "1 sit a queen, 
and shall see no sorrow," that was " clothed in fine linen 
and purple and scarlet, and decked with gold and precious 
stones and pearls," but in its doom " with violence shall 
that city be thrown down," for " by thy sorceries were all 
nations deceived." It is no distant city, so dim and unreal 
as only to be wrought in spectral imagery, and no imagin- 
ary strife, as if fought by phantom armies, and no war of 
ideas in some intellectual field. It is the reality of history, 
it is " a city whose merchants were the great men of the 
earth," and in its overthrow " the company in ships and 
sailors, and as many as trade by sea, stood afar off, and 
cried when they saw the smoke of its burning, saying, 
* what city is like unto this great city.' " The language 
which denotes its character, presents no type of individual 
passion or action, no ideal state, no mystic city of the soul, 
but it is the type of an inhuman, a material civilization. 
The victory over it is in the deliverance of humanity, and 
yet in the description of those who fall upon its battle-field, 
there is only one word to indicate * the moral character of 
the battle fought, — " there is the flesh of kings and the 
flesh of captains and the flesh of mighty men, and the flesh 
of horses and of them that sat on them, and the flesh of 
all men, both free and bond ; " and in the schedule of trade 
which is given with such detail, as if to compel attention 
to its real character, there is only one word to indicate its 
mora^ condition, — *' the merchandise of gold and silver, 
and precious stones, and of pearls, and fine linen, and pur- 
ple, and silk, and scarlet, and all thyine wood, and all man- 
ner of vessels of ivory, and all manner of vessels of most 
precious stones, and of brass, and iron, and marble, and cin- 
namon, and odours, and ointments, and frankincense, and 
wine, and oil, and fine flour, and wheat, and beasts, and 

2T 



418 THE NATION. 

sheep, and horses, and chariots, and slaves and souls of 
inen."i 

The goal of history is in the fulfillment of the highest 
pohtical ideal. It is the holy city ; it is the new Jerusa- 
lem, the end of the toil and conflict of humanity. There 
is the manifestation of God as the centre of the moral uni- 
verse. Of that vision it is written in the book which of 
all others has the voice of anthems and the swell of litur- 
gies, — and amid the confusions of sects and opposing ec- 
clesiasticisms the words are as those of peace, — "I saw 
no temple there." There is the unity of the universe 
which has been revealed in the eternal sacrifice, — "the 
glory of God doth lighten it, and the Lamb is the light 
tihiereof." It is toward it that the nations move in the 
fulfillment of the life of humanity. It is written of the 
holy city, "they shall bear the glory and honor of the 
nations into it." '-^ 

The conflict of the ages of humanity is closed. The 
battle is ended in eternal triumph. The humiliation has 
passed into the glorification of the Son of Man, and in that 
eternal relationship with the Father and the Spirit there is 
for humanity the realization of that glory which He, who is 
the Son of God, had before the world was. 

The nation is to work as one whose achievement passes 
beyond time, whose glory and honor are borne info the 
eternal city. It is not here that it may look for its perfect 
rest. It has an immortal life. It is no more a kingdom 
of this world, but it is formed in the realization of the 
redemptive kingdom of the Christ. The leaders and the 
prophets of the people can only repeat the ancient lesson, 
*'He is come, and unto Him shall the gathering of the 
oeople be." 

1 Revelation xviii. ^ Revelation xxi. 36. 



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